If Ringo Starr can work past 70, what's wrong with lifetime federal judges?

Former Beatle Ringo Starr celebrated his 70th birthday in New Work City on July 7th. But according to a headcount done by a Fox News affiliate in Washington, D.C., last year, Aging Judges Still on the Bench, Ringo’s milestone now puts him in the still working company of other septuagenarians like those still serving on the nation’s federal bench. According to the Fox News report, more than 1/3rd of the nation’s federal judges are past 70.

At 70, Ringo flashed peace and cut his cake sans all those candles. He then performed at Radio City Music Hall. Next January, Neil Diamond, another tireless musical performer will also join the ever-expanding musical septuagenarian set, which will also include Bob Dylan and Paul Simon later this year.

Country music star Merle Haggard still croons and tours at age 73 as does his good buddy, 77-year old Willie Nelson. Still strumming and singing Blues guitarist B.B. King turns 85 this September.

I remember meeting a Baby Boomer judge several years ago at a dinner party. He was excitedly telling those within earshot about having attended a Rolling Stones concert. I was incredulous. “What?,” I asked. “Are the Stones still touring?” Yes, they were.

What did I know? Mick, who will himself turn septuagenarian 3 Julys from now, still sings, dances and fronts his band, which first performed almost 40 years ago.

That night, I also remember shuddering at the thought of a septuagenarian Britney Spears still touring and possibly still flashing her fans in 2050.

Sometimes Elvis does leave the building.

But not everyone hangs around, even when they can. Not even judges. When in 2009, Nevada Republican Gubernatorial Candidate Brian Sandoval gave up his lifetime appointment to the federal bench in the Northern District of Nevada, legal tongues went a-wagging. Lawyers and judges found the decision breathtaking in its audacity. After all, he’d only been on the bench about 4 years and at age 46, had the rest of his life to serve as a federal judge.

Under Section 1, Article III, of the U.S. Constitution, “The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour. . . .” The words, “during good behaviour” effectively delineate a lifetime appointment.

Judge Sandoval resigned to run for governor, a step down to some. Now having won the nomination as Republican candidate for governor of Nevada, his prospects of winning are deemed good.

It’s o.k. to move on.

I say there’s absolutely nothing wrong with Judge Sandoval giving up his judgeship to do something different. Indeed, such reinvention is not only worthy of praise but of admiration.

Indeed, in many respects, it was a downright refreshing development given its anomaly. More typical is to compare centenarian Kansas federal judge Wesley Brown, who has no plans to resign or retire or ever go away finding Work key to long life for 102-year-old judge.

Hon. Wesley Brown

Is lifetime sinecure a bad thing?

But as  Boston Globe columnist Jeff Jacoby recently opined in The Declining Opinion, overstaying isn’t always a good thing. At the time of our nation’s founding, the average 18th century lifespan was 40. That’s roughly half of what it is today. So the fact that supreme court judges, for example, now serve an average of 25.5 years, gives some pause as it might have our founding fathers.

Having been talked about repeatedly by legal minds, op-ed columnists, and the person on the street, the consequences of a lifetime appointment are well known. Among the more negative effects are systemic procedural partisanship and a gawdawful acrimonious judicial confirmation process.

Beyond this, there’s also the concern from some quarters about the hazards found in a mentally and physically enfeebled judiciary, which has the potential of diminishing public faith in the courts. Seventh Circuit Federal Appellate Court Judge Richard Posner once called the judiciary “the nation’s premier geriatric occupation.“

In 2005, Judge Posner blogged, “I wish to make a suggestion that would achieve the principal benefits of mandatory retirement without the principal costs. It is simply this: beginning at age 70, require every life-tenured professor and every life-tenured judge to take a test of mental acuity every five years”

“The test results would be available to the members of the professor’s department or the judge’s court but to no others. The results would not be a basis for a determination of incapacity; they would not even be admissible in a competence hearing. The expectation rather is that a poor test result would persuade the individual, perhaps by persuading his colleagues who would in turn persuade him, or persuade members of his family to persuade him, to retire voluntarily.”

So the thesis of Jacoby’s Boston Globe column was hardly new. Indeed, he merely restated what historian David J. Garrow said in 2005 to Reason Magazine in Supreme Court Senility. 5 years earlier, Garrow had authored a study entitled Mental Decrepitude on the U.S. Supreme Court: The Historical Case for a 28th Amendment, in the Fall 2000 University of Chicago Law Review.

Judicial independence.

By insulating federal judges from politics, power and people, a lifetime appointment protects judicial independence. In Law Day Talking Points: Independence of the Judiciary, the ABA highlights the benefits of judicial independence:

~ It assures all Americans that cases will be decided on their merits. All litigants know that their case will be decided according to the law and the facts, not the vagaries of shifting political currents or the clamor of partisan politicians. Decisions are based on what is right and just, not what is popular at the moment.

~ Throughout American history, the independence of the judiciary has protected individual liberties and prevented a tyranny of the majority. Examples include extending voting rights, ending segregation, protecting average citizens from unwarranted government intrusion.

However, public opinion polls, e.g., Pinnacle Tracking Poll, show a majority disagrees with lifetime appointments for Supreme Court. And every couple of years, legal scholars and lawyers say as much albeit in a more diplomatic manner than some laypersons.

In fact, some of these legal experts recommend a single term of 18 years for Supreme Court Justices, including Akhil Reed Amar and Vikram David Amar writing in Should U.S. Supreme Court Justices Be Term-limited? and former supreme court clerk and lawyer, Edward Lazarus, in Life Tenure for Federal Judges Should It Be Abolished?

The trade-off between independence and accountability.

It seems the insolvable dilemma is the trade-off society is forced to make between safeguarding judicial independence and holding judges accountable. Impeachment is the only real remedy to rein in bad federal judges.

However, in the nations’ entire history, only 15 judges have ever been impeached. The most recent was this past March when the House of Representatives voted unanimously to impeach Judge G. Thomas Porteous Jr., House votes to impeach federal judge from Louisiana.

For the rest of the judiciary unprotected by lifetime job security, there’s the electoral campaign process, which a lot of them hate and which is criticized as unseemly and corrupting. In other jurisdictions, more fortunate judges find quasi-lifetime job security from incumbent-favorable judicial retention elections, the essential component of the merit selection system. But that system also has a legion of detractors.

More of the same.

Unlike Elvis, other celebrities are free to never leave the building and work well past prime time. As long as their aging fans keep paying to see them, they’ll plan on doing “more of the same” as 84-year old Hugh Hefner told NY Times Magazine interviewer Deborah Solomon in her Sex and the Single Man interview today.

But when it comes to a lifetime-appointed judiciary, the problem remains that unlike over-the-hill musicians, when federal judges lose it, it’s more serious than just singing or playing off-key.

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