Newman Sanction Renews Debate Over Aging Judges’ Lifetime Tenure

The recent sanction and suspension of Pauline Newman, the nation’s oldest active federal judge, reignited a debate over whether there should be changes to the laws and rules around lifetime appointments.

The 96-year-old Newman, who has served on the US Court of Appeals for the Federal Circuit since 1984, was suspended for one year by the court’s Judicial Council on Sept. 20 for not submitting to medical testing as part of a disability and misconduct investigation launched earlier this year into her fitness to continue serving on the bench.

The investigation—which has played out in an unusually public way—has divided court watchers and provoked varied responses from scholars who have studied the issue of an aging federal judiciary.

Under Article III of the Constitution, judges “hold their office during good behavior,” which means they typically serve until voluntarily retiring or death.

“Most judges die while not retired,” said Francis X. Shen, who authored a recent law review article that said 75% of judges die while still serving.

The article, published in 2020, said that the average age of federal judges in 2017 was 69, “the highest it has ever been"—two decades older than in 1790, the first year of available data—and beyond the age when many Americans choose to enter retirement.

Shen, who is on the faculty at Harvard Medical School’s Center for Law, Brain & Behavior, said federal judges are among a group of professionals like physicians, academics, business executives, actors, and politicians, who differ from most workers in one important respect.

“In almost any other job, they throw a retirement party and they can’t wait to stop,” Shen said in a phone interview with Bloomberg Law. For judges and those other professions, he said, retirement means shedding the prestige and influence associated with the robes.

But Ryan Black, a political science professor at Michigan State University, said “there are measurable consequences for just about every facet of the work done by those judges,” pointing to several recent research papers on the aging judiciary.

“We observe longer delays in writing opinions and greater dependence on heuristics and other shortcuts when making decisions as judges age,” said Black, who, along with University of Wisconsin professor Ryan Owens and University of Maryland professor Patrick Wohlfarth, is working on a forthcoming book on cognitive aging and the federal courts.

Specifically, Black said, older judges opinions borrow more heavily from briefs filed by litigants’ attorneys as compared to those written by younger judges. Older judges on average also take longer to write opinions, according to the trio of professors’ research. Complaints about the length of time Newman took to write opinions were one of the reasons cited by Newman’s colleagues for their investigation.

Her legal team and the Judicial Council have also sparred over the issue of testing. Newman has released medical reports from two doctors she selected after the probe began—both of whom declared her fit to continue serving—and said the investigation has “tarnished” her legacy. In the Sept. 20 order, Newman’s colleagues rejected those exams as “cursory” and inadequate.

Possible Solutions

Shen argued every federal judge should be subject to regular medical testing to ensure that they remain capable as they age. He said there should be a mechanism for the removal of judges who have lost their edge.

“We assess judicial health once and only once, and that’s when they get on the bench,” Shen said. “I’d be for doing this routinely.”

An alternative approach some court observers prefer is a mandatory retirement age. A handful of countries have adopted such age caps ranging from 60 in Ethiopia to 75 in Brazil, Chile, and Canada, according to the Federal Judicial Center.

Shen, however, said such a policy inevitably means some judges are forced off the bench while they’re still functioning at a high level.

“I’m all for older judges; I’m just for separately identifying the judges who still got it, and those who don’t,” he said.

Marvin Zuker, a retired Canadian judge who had no choice but to retire from a criminal court in Toronto when he turned 75, agreed, and said in an email he was sympathetic to Newman’s plight.

“Unless there is substantial case law and complaints about the way Judge Newman has been doing her job, she should not be removed,” Zuker wrote. “I suspect she is better than many judges half her age.”

Senior Status Tweaks

For federal judges who want to keep working but at a reduced pace, the US code offers the option of going on senior status, a form of semi-retirement where judges still hear cases but at a reduced capacity. Presidents can appoint, and the Senate can confirm, replacements to fill vacancies created by a judge moving to senior status.

The Federal Circuit has seven senior judges, the youngest being 73-year-old Evan Wallach, and the oldest S. Jay Plager, who is 92. Judge Alan D. Lourie, who has served with Newman on the court since 1990, and who is in his late 80s, visited her Watergate apartment prior to the misconduct probe and asked her to consider taking senior status, according to court documents.

University of Pittsburgh Law professor Arthur Hellman, who has closely studied the laws and Judicial Conference of the United States rules governing misconduct and disability investigations, said a mandatory test could lead to “some argument about constitutionality.” Judges deemed unfit to continue serving could argue that only Congress, not a testing regime, can remove them from office.

Hellman also said some judges may not trust their court’s chief judge—who has the power to determine senior judges’ workload—to assign them cases once on senior status. He said a subtle tweak to the way senior status works could encourage some active judges who’ve slowed down to “continue to do what they love doing without the full-time responsibilities.”

“If a judge’s ability to sit wasn’t completely at the unrestricted discretion of the chief circuit judge,” Hellman said, some judges—perhaps including Newman—might evaluate their situation differently.

Newman has said she thinks she was targeted by her colleagues because of her frequent dissents, rather than her age or productivity. It’s not clear whether a guarantee of a regular workload would have persuaded her to take senior status.

“If her work wasn’t completely in the hands of the chief judge” Newman’s attorney Greg Dolin said, it might have moved the needle—"at the margins.”

But he emphasized that it’s important to Newman to participate when the court goes en banc, a process where all active judges, but no senior judges, decide a case. And he said she generally wants to be as involved as possible in shaping the court’s jurisprudence.

“She truly believes, and I agree with her, that the nation needs her voice so long as she can articulate her positions clearly,” Dolin said.

Newman declined through Dolin to be interviewed for this story .

Tough Row to Hoe

The issue of an aging judiciary isn’t likely to go away any time soon, and could even gain added attention, particularly as similar questions about aging elected officials dominate the headlines ahead of the 2024 election.

Black said addressing it in some form or fashion is broadly popular in polling—including among both Republicans and Democrats—but it tends to be a low-priority issue for those who are polled. Black encouraged the judiciary to spend more time thinking about fixes before it becomes a high-priority issue.

“The Supreme Court would be wise to take this up before Congress or the executive branch crams something down their throat,” he said.

Hellman said a number of the leading reform proposals, like testing, could face legal and constitutional challenges. But he said it’s still “worth having these discussions.”

“People are living longer and wanting to work longer,” Hellman said, “so this won’t be the last case like this.”