Bloomberg Law
April 17, 2023, 4:15 PM

It’s Time to Abandon (or Closely Monitor) Judicial Life Tenure

Xiao Wang
Xiao Wang
Northwestern University Pritzker School of Law

Life tenure is a unique aspect to our federal judiciary: No other country affords that protection to its judges. The Framers justified life tenure as necessary to safeguard judicial independence and promote development of the law.

My research, though, has challenged the first premise: the link between a lifetime appointment and judicial independence. In a study published earlier this year, I show that federal judges are increasingly making retirement decisions in a politically strategic manner.

During President Donald Trump’s term, for instance, more than 80% of judges who took senior status had been originally appointed by a Republican president. Such decisions are only possible because, with life tenure, judges have near-total control over how long they want to serve and when they want to call it quits.

And recent events have begun to cast doubt on the second premise: that lifetime appointments promote development of the law. The Judicial Council of the Federal Circuit recently issued a statement confirming that misconduct and disability proceedings had begun against Judge Pauline Newman. The council included two orders summarizing its ongoing investigation into Newman.

Read together, these documents paint an undeniably sad picture. In nearly four decades on the bench, Newman has been an extraordinary public servant. But the council’s report shows an individual now in physical and mental decline: fainting at argument, failing to keep up with an already-reduced caseload, exhibiting inappropriate behavior before her staff.

Whatever the ultimate result of this investigation—for what it is worth, others have disputed Newman’s decline—the episode speaks to a larger problem facing the judiciary. The average age of a federal judge is currently 69. That is eight years after most Americans decide to retire. More than one in 10 judges is over 80—Newman is 95.

What is happening to Newman will, in short, only happen again, and likely with greater frequency in the near future. That fact carries consequences. Physical and cognitive declines—a natural consequence of aging—invariably affect the parties in the case before any particular judge. But they can also be more wide-ranging. For example, decisions in the Federal Circuit—where Newman sits—shape intellectual property law across the entire US, potentially impacting all Americans.

The system, as currently constituted, is ill-equipped to handle this difficulty. The Constitution provides for the impeachment of federal judges. However, since 1803, only 11 judges have been convicted or resigned because of impeachment proceedings.

Federal law also provides a mechanism for the forced retirement of a judge who is deemed disabled, and the Federal Circuit is following that process for Newman. But like impeachment, this procedure is rarely invoked, in no small part because it requires judges to attest to their colleague’s diminished capacity. That is both an inherently subjective call and an incredibly challenging endeavor, especially if that colleague was once a mentor to younger judges.

A mandatory retirement cap could, in theory, provide a backstop against such perils. This would require a constitutional amendment, which would be no small feat with a Congress that has trouble getting things done even on issues of bipartisan interest. In addition, it may put pressure on caseloads by removing many of the judges who take “senior status,” but continue to take on robust caseloads.

Despite the practical difficulty of reform, it is not some radical solution. Right now, 33 states and the District of Columbia impose a maximum age for state and local judges. The cap is generally between 70 and 75 years old—enough time to provide valuable service, but before dramatic age-related impacts to functioning typically set in.

It’s true that any cap would be overinclusive, compelling some still-capable judges to leave the bench early. But that is a feature across many laws, from speed limits to military conscription to permitting and zoning rules.

Moreover, a judge’s valuable perspective does not become valueless upon retirement. To the contrary, former judges can—and many do—assist the legal community in other ways, whether in private practice, as mediators, or pro bono work. And regular turnover of federal judges could offer yet another path for new and diverse voices to join the bench.

Another path forward would be to require federal judges to take regular cognitive assessments. The first assessment would occur when a judge is first confirmed to establish a baseline. Federal law could then set parameters so that once an individual’s cognitive scores show a consistent, marked decline as measured against the baseline, then the judge would be encouraged to take a reduced caseload or retire. Refusal to do so could fast-track that judge on the disability determination process described above.

These paths are not the only possible avenues forward. What is more important is for public officials to begin grappling with these questions. The judiciary is unique among the branches. It has neither the power of the purse nor the power of the sword. Its legitimacy rests on the reasoning in its opinions. Cognitive issues that jeopardize the quality of such reasoning undercut judicial legitimacy.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

Xiao Wang is a clinical assistant professor at Northwestern Pritzker School of Law and the author of the article “The Old Hand Problem” which argues that federal judges now frequently retire for partisan reasons.

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