Federal judges keep getting older…and they are hard to remove (2024)

A bitter legal battle between the nation's oldest active federal judge and colleagues who say she is no longer fit to do a job guaranteed for life has refocused attention on the ageing federal judiciary and the consequences of lifetime appointments.

Pauline Newman's colleagues on the U.S. Court of Appeals for the Federal Circuit began an investigation in March over whether the 96-year-old judge has a mental impairment that is interfering with her responsibilities.

Newman refused to cooperate with the investigation and sued her colleagues, rejecting claims that she is impaired and accusing them of unlawfully sidelining her from the court.

The clash could be a sign of battles to come as a growing number of judges with lifetime tenure are remaining on the federal bench into extreme old age, presiding over cases amid allegations their mental capacity and physical health have diminished.

At least 86 of the nation's more than 1,400 active and senior federal judges will be at least 90 years old by the end of this year, according to a Newsweek analysis of data from the Federal Judiciary Center.

That's a sharp rise from 2010, when a ProPublica survey found there were 11 federal judges over 90 years old hearing cases, including one who was over 100.

Lifetime appointments have been a feature of the federal bench since the Constitution was ratified in 1789. Alexander Hamilton dismissed the "imaginary danger of a superannuated bench" in The Federalist Papers, and the Constitution ultimately placed no term limits on federal judges, including the justices who make up the Supreme Court.

The Constitution conferred tenure during good behavior "to prevent politicians from bending judges to their will to the detriment of the rule of law," Charles Gardner Geyh, a law professor at Indiana University with an expertise in judicial ethics, told Newsweek.

"But the founders had no reason to think that judicial service would become so popular that judges would want to stay on the job forever... And they had no reason to know that, thanks to advances in medical science, people would live so long."

And while the majority of U.S. states do not allow judges to serve so deep into their sunset years, it's a different story in the federal judiciary—where there are few tools to force those whose faculties have declined in old age off the bench.

One of the reasons that many federal judges are staying in their roles for longer, in many cases until they die, is because they can take senior status, although that is something Newman has refused to do.

The arrangement, a form of semi-retirement for life-tenured judges over the age of 65 who have completed at least 15 years on the federal bench, means they can work as much or as little as they like and still draw a salary, and the president can also nominate a new—and younger—judge to fill the role they have vacated. There are currently 625 judges with senior status, according to the Federal Judiciary Center's database.

Geyh said that because older judges "can serve admirably, and because amending the constitution is nigh unto impossible—particularly in a polarized era—the provisions of the Judicial Conduct and Disability Act for sidelining judges when they begin to lose their faculties become all the more important."

However, he noted that Newman's case is "odd and exceptional."

In most instances when a judge starts to signs of dementia, the chief judge and colleagues—with the aid of friends and family—"gently talk her into voluntary retirement, with the threat of formal disability proceedings serving as a kind of shotgun behind the door," he said.

Last week, a federal judge urged Newman and her colleagues to resolve the dispute without his intervention. U.S. District Judge Christopher "Casey" Cooper appeared reluctant to rule on Newman's request to revoke her suspension while she faces the misconduct investigation, Reuters reported.

A committee investigating Newman earlier said it would narrow its probe to focus on whether her refusal to cooperate amounts to misconduct, as it would not have enough information to determine if Newman had a disability after she declined to undergo a neurological examination and turn over her medical records.

Greg Dolin, an attorney for Newman, told Newsweek last month that Newman had been suspended from hearing cases pending the outcome of the investigation. Dolin alleged that this is unprecedented and a violation of Newman's due process, considering there was no finding of misconduct, illness or injury and was the product of an "ill-formed suspicion that maybe Judge Newman had problems".

Newsweek has contacted Dolin and an attorney representing Chief Federal Circuit Judge Kimberly Moore and colleagues pursuing the probe for further comment.

Francis Shen, a professor at the Harvard Medical School Center for Bioethics who has conducted research on the age of federal judges, argues that the federal judiciary needs to start assessing the competence of judges at regular intervals, so any decline in mental capacity can be objectively analyzed.

Aging is "very individualized," Shen told Newsweek. "It's not the case that every older judge, even a judge over 90, is no longer capable of being a judge. Many probably are.

"But it's also the case that risk factors for cognitive decline increase and increase significantly, at the outer ends of human aging."

Having a judge undergo a neurological examination only when issues arise presents a challenge "because you don't know how you were functioning five years ago, or 10 years ago," he said. "In the system I propose, we would head these issues off at the pass early, because you would see these trends in decline."

Doing so would prevent cases like Newman's, he said.

"What's ironic to me is that we have tools for exactly this sort of thing, which is assessing cognitive decline in older adults at the individual level and we ought to utilize those tools," he said.

"We have the capacity to do it. We have the tools to do it. We just, I guess, don't have the political will or we haven't had a moment where it's right, but maybe this is it."