The first Baby Boomers turn 65 this year. An article by William Loeffler in the Pittsburgh Review-Tribune last November posed the question, “Is 50 the new 30? What constitutes ‘old’ is always evolving.”
Age, as a relative term, is not a new concept, especially for Boomers. Back in 1971, the hair coloring product, Loving Care, was already advertising, “You’re not getting older. You’re getting better.”
Missing all the aces.
The problem as reported here at “After 100 years old, it’s all “crap,” is not necessarily that we’re getting better as we age but that we’re self-servingly constantly moving the goalposts back to redefine the meaning of ‘old.’ It’s that other guy that’s old, not me.
Such thinking’s not necessarily evolutionary. But it may be delusionary. There’s even research suggesting that “The Older We Get, the Happier We Are.” Perhaps it’s a variant of the expression, ‘the older I get, the younger they look’ but applied to someone you know really is older than you.
Aging on the bench.
This week, an article by Joseph Goldstein published in conjunction with Slate in ProPublica, “Life Tenure for Federal Judges Raises Issues of Senility, Dementia,” raises the continuing concerns over the risks posed to the public by lifetime-tenured federal court judges who refuse to quit even when their physical or mental skills have manifestly eroded. And short of the rare process of impeachment, the only safeguard left is judicial self-policing. That may be cold comfort for litigants with life, liberty and property interests at stake.
The challenge of self-policing is crystallized by former Judge Karen Williams who is quoted in ProPublica‘s story as being against mandatory testing of a judge’s continued physical and mental fitness to serve —– even though at age 57, she was diagnosed with early-onset Alzheimer’s disease. She retired July 8, 2009 from the US Court of Appeals for the 4th Circuit.
Beyond relating how and why federal judges stay around as long as they want, there wasn’t a lot new to report in ProPublica’s story. Historian David J. Garrow’s observations are mentioned. (Garrow’s 2000 law review article, “Mental Decrepitude on the US Supreme Court: The Historical Case for a 28th Amendment,” has been widely commented upon but has ultimately proved inconsequential).
Indeed, in July last year, some of this same ground was also covered at, “If Ringo Starr can work past 70, what’s wrong with lifetime federal judges?”
So as we age, how reliable is our subjective standard that we still have the mental and physical chops to perform? When do we know it’s time to stop driving, for example? Hopefully, it’s not after the first time you side-swap a parked car or nearly run down an ‘unseen’ pedestrian entering a crosswalk.
48-year old boxer Evander Holyfield, for example, is taking interviews about yet another “Comeback Of The Century.” And coincidentally, Vikings Quarterback Brett Favre is making moves to “again retire” from football, prompting one wiseguy sports pundit at Bleacher Report to name his “Brett Favres of Boxing: 15 Fighters Who Just Need to Retire.”
It’s also well-known that criticisms have consequences. “Lawyers Can’t Say Unkind Things About Judges” at least not without possibly taking a few ‘slings and arrows.’ Under the rules of professional responsibility, lawyers are expected to “demonstrate respect for the legal system and for those who serve it, including judges, other lawyers and public officials.
“While it is a lawyer’s duty, when necessary, to challenge the rectitude of official action, it is also a lawyer’s duty to uphold legal process.” See Model Rules of Professional Conduct (2004). So unsurprisingly, ProPublica notes, “Generally protective of the bench and fearful of backlash, lawyers rarely complain.”
And as for suffered consequences, there’s the latest albeit not necessarily age-triggered instance from Texas involving US District Court Judge John McBryde. And while he does turn 80 this year, he long before earned a reputation for taking extraordinary exception to any perceived slight or challenge. See, for example, a news item about Judge McBryde circa 1997, “Temper, temper“ and more recently, the ABA Journal news item,“Federal Judge Recommends Criminal Charges for Lawyers Who question his Impartiality.” And for yet another take on how federal courts draw the line between what they decide is lawyer misconduct and courtroom decorum, also see “Mark Brennan: He’s loud, he’s physical, he’s profane. But does that make him a bad lawyer?” and “Be Nice Or Be Disciplined.”
Although Federal Judge G. Thomas Porteous was impeached, convicted, and removed last year, such proceedings are rare. See “Senate removes federal judge in impeachment conviction.”
Preserving judicial independence remains a sacrosanct principle. Lifetime tenure is considered the best means to safeguard that independence even though actuarially, the “lifetime” today is much longer than was ever contemplated by the Founding Fathers.
So other than self-policing or voluntary retirement, the only other realistic remedy to safeguard the other important interest, the public’s, may have to be the continued scrutiny of the federal courts provided by traditional and new media online commentators.