Law in Contemporary Society


-- By BrianMaida - 18 Feb 2016


“When, at a fairly early hour of the morning, I put the key into the door of my darkened chambers, switch on my lights and walk across the room to start the day's activities, I do so with the same enthusiasm that was mine the very first day of my judicial career.” – Judge Edward Weinfeld

Judge Weinfeld was undoubtedly an extraordinary man. Justice Brennan described him: “There is general agreement throughout the nation that there is no better judge on any court.” It is verifiable fact that he was well beyond competent until the day he passed.

Judge Weinfeld reminds me of my grandfather. Born in the Bronx in 1928, Captain Daniel Kenny survived The Great Depression, graduated from Cardinal Hayes High School, bypassed college to take a job at Caltex (later Texaco/Chevron) in need of supporting his family and was drafted into service for the Korean War. At age 88, on a daily basis, he still wakes up at 5 A.M. to complete the New York Times Crossword Puzzle. On this past Saturday night, at his 65th wedding anniversary, he gave a toast describing, in excruciating detail, the once-commissioned-in-WWII plane that carried the couple on their honeymoon. I have no doubt that, had he become a federal judge in a different life, he would be well beyond competent to this day.

But these two examples cannot be used to overgeneralize a conclusion about age. There are two sides to every coin.

Father Time: ∞-0

On the other side of my family is Carmela Travado, my widowed grandmother who, at age 87, suffers from dementia. I recently went to visit her and she was frantic, thinking I was an intruder; she calmed down when she realized that I was her brother Dominic (deceased).

Dementia is not to be confused with senility, the mistaken conviction that as humans age they inevitably suffer serious mental decline; this has no medical support and, although I may have previously quipped that I was already suffering from the effects of old age, its suggestion is, quite frankly, disrespectful. Dementia, on the other hand, is a term used to describe a variety of symptoms, revolving around a decline in thinking skills that inhibit a person’s ability to perform every day activities. Dementia is real and it’s a problem.

Any source will list the most important risk factor as age. While the statistics are imperfect, most estimates have about 1 in 10 Americans over the age of 65 suffering from the disease; that figure rises to about 1 in 3 Americans with the age of 85 used as the cutoff.

Among the common symptoms of dementia are impaired memory, attention span, reasoning and judgment.

Best Behaviour

“The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour...” - U.S. Const. art. III, 1

Life tenure for federal judges, rooted in separation of powers, is an effective means of optimizing political independence for the judicial branch.

I was surprised to learn how exclusive the judiciary is; there have been less than 3,600 federal judges in our nation’s history. The federal judiciary is a position worthy of the respect it garners, and, for that reason, no truly radical suggestions are required. But if life tenure is here to stay (amending the Constitution is difficult), in the spirit of a living Constitution, its consequences need to be analyzed given the medical and technological advances in today’s society. With the exception of the life expectancy data, I compiled the following tables from an analysis of FJC’s Biographical Data of Federal Judges:

Judges are currently living longer than they were in the 19th Century, but are being appointed to the position at approximately the same age; this results in longer terms being served and older judges being active on the bench.

Further, and perhaps more alarming, is that judges are remaining active until death at extremely high ages. These trends raise multiple concerns.

One is the case content: the federal courts have original jurisdiction to all, often technical, patent cases. As sharp as my grandfather may be, he still writes letters in ink because it’s “more trustworthy than that electronic post-office shit.”

A second concern is its potential diminution on the effect of the Democratic Process. A judge being appointed with parallel political views of the President has a strong chance of serving 20+ years on the bench (just recently Scalia, Kennedy, Thomas, Ginsburg, Breyer). This incentivizes a more intense battle between the executive and legislative branches over judicial nominations (see Garland, Merrick) for positions that are supposed to be independent of external political pressure.

The third concern is Father Time’s spotless record. Dementia is far from an epidemic among judges, but there are enough instances that the concern should be taken seriously. An indicative example was Richard Owen: army veteran, opera-loving composer and judge at SDNY for over 40 years. At a 2007 hearing, he asked a lawyer to explain what e-mail was. If this seems like it fits under the “content” concern, it doesn’t: years before, he decided multiple cases that revolved around e-mail. This was something more. Perhaps, this was dementia.

Federal judges are essentially a self-policing group; the only external means of removing them from the bench is impeachment, which, for various reasons, is a heartless suggestion (see dignity, respect, pride). But the policing needs to improve.

To this point, more federal judges have died while active than all other reasons for termination combined. Potential solutions include an independent committee, free of political influence, to monitor judges’ mental acuity. Maybe the “senior-status” judges can reach, resulting in a reduced workload and more clerks, can become involuntary. But at a bare minimum, judges at an at-risk age for dementia should be required to undergo mental medical testing. Even if dementia’s effect on justice in this country is rare, it is irresponsible to let it happen in any capacity because, to defer to Judge Weinfeld, "there are no small cases."

This draft is improved by the presence of some data, although in the end, as you say, what you proved was that we continue to appoint as federal judges people with decades of experience in practice, and they live longer, remaining productive on the whole far beyond the working lifetime of most citizens.

Now, the argument has been reduced to dementia. About this, you have no data. That we have no documented difficulty with the incompetence of federal judges, and no specific problem arising from dementia, seems not to deter your presentation. You think that monitoring of judges' mental health doesn't exist, for some reason. You don't discuss how retirement actually happens among federal judges, how senior status works, how assignment committees in the judicial districts function. You don't know about the fact that lifetime wages is one part of the judicial deal, and no survivor's pension to spouses is another, thus making senior status (which results in the appointment of a replacement full-time judge) the real arrangement you think doesn't exist and need to cast aspersions on judges' capacities in order to lobby for.

I don't think there's more to be done here, but if there were it would lie in taking the step that reporters are required to take and lawyers find professionally hard: really understanding both the facts and the other side.

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r5 - 05 Jun 2016 - 14:39:30 - EbenMoglen
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