How to ensure aging federal judges remain sharp

Americans are living longer and are more likely to continue working into their twilight years, with federally elected and appointed officials being no exception. Unsurprisingly, Washington is unequipped to handle various problems associated with aging, specifically the potential for cognitive decline in federal judges who, unlike their counterparts in the executive and legislative, are appointed for life.

Given the courts’ wide authority over who lives or dies, who can vote, who can enter the country and countless other critical issues, this is a problem that should be addressed soon and on a national level.

D.C. has a long history of public servants serving past their primes, from Supreme Court Justice William Douglas holding on to his seat for nearly a year after a debilitating 1976 stroke to President Reagan exhibiting signs of Alzheimer’s at the end of his presidency to rumors of nonagenarian Sen. Robert Byrd’s (D-W.Va.) staff placing his finger on the “aye” or “nay” button during key votes a decade ago.

{mosads}Even though America’s oldest elected president has successfully filled a staggering number of vacancies with young judges in the last year, time remains linear and the judiciary is still superannuated: according to the Federal Judicial Center, about one in six federal judges is 80 or older, and more than three dozen judges are 90 or older.

While presidents and members of Congress can be voted out of office should their constituents deem them no longer up to the task, that is not the case for federal district and appeals court judges and Supreme Court justices. Of the more than 3,600 men and women who have served on the federal bench, only 15 have been impeached, with just eight convicted by the Senate. The only justice to have been impeached, Samuel Chase in 1804, was acquitted the following year.

What can be done, then, absent a term limit or mandatory retirement age statute or constitutional amendment, to ensure that life-appointed judges remain sharp during their later years?

In 2015 I asked the federal judiciary to establish a nationwide program aimed at identifying and mitigating cognitive decline in judges. The first program of its kind was established in the San Francisco-based Ninth Circuit in 1999, and I was hoping to see it implemented nationally. The circuit’s judicial wellness committee, as it’s called, encourages aging jurists to undergo mental health assessments, hosts neurological experts to speak about the warning signs of impairment and asks that judges empower their friends and colleagues to step in if they believe there’s reason to be concerned about a judge’s mental health. There’s even a hotline where court staff and judges can get advice about dealing with signs of senility. 

The response I received was akin “no, thanks.” Each federal circuit, wrote the director of the Administrative Office of U.S. Courts, “formulates internal policies for its own governance.”

I then called the circuit executives of the 12 other regional appeals courts to ask if they had established their own initiatives to promote wellness. A handful had — for example, the Chicago-based Seventh Circuit invites health and aging experts to present at their annual meetings, and the D.C.-based Federal Circuit has an occupational health nurse on site to monitor judges’ fitness — and several others, like the Boston-based First and St. Louis-based Eighth Circuits, are working on them as we speak.

Yet just as the Supreme Court steps in and decide the law when two circuits disagree, the federal judiciary should actively create a model program that can be employed by all 13 circuits and the 94 district and bankruptcy courts they oversee. They can start by looking to the Ninth Circuit, though it’s possible other courts, such as state supreme courts or military courts, have proven systems in place. To that end, I recently sent a Freedom of Information Act request to the Department of Defense to determine if they have any policies vis-à-vis aging and impairment for military judges.

Age and experience are generally assets for elected and appointed officials, and health can be a touchy subject. (Even Chief Justice John Roberts took umbrage when queried about his colleagues’ health, cheekily writing in 2016 he’d only provide such information “when a need to inform the public arises,” and he hasn’t followed up since.) There comes a point in time, though, when cognitive decline becomes a possibility for each of us, and that point differs greatly from person to person.

Since no one wants a diminished judge or justice to be the deciding vote on a case of national importance, the federal courts should do more to ensure its hundreds of life-appointed jurists remain unimpaired.

Gabe Roth is executive director of Fix the Court, a nonpartisan nonprofit that advocates for greater openness and accountability in the federal judiciary.