Federal judges are getting older—and more often senile.

The law, lawyers, and the court.
Jan. 18 2011 7:01 AM

The Oldest Bench Ever

Extreme aging in the federal judiciary—and the trouble it causes.

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The judge who patrols that highway most aggressively is Frank Easterbrook, chief of the Chicago-based 7th Circuit U.S. Court of Appeals. In the last four years, Easterbrook says, he has arranged for two colleagues to see neurologists. One was diagnosed with Alzheimer's and retired. The other insisted on returning to the bench after a stroke, but because he had difficulties "with executive function," Easterbrook said, he removed all criminal cases from the judge's docket. Easterbrook has even publicly called on lawyers to contact his chambers directly if they think a judge is exhibiting symptoms of dementia—a rare move by the bench to enlist the public in monitoring judges.

Why do judges outstay their welcome? Longer life spans and attachment to the job play a role. Another factor, judges and experts say, is that in some ways the job has gotten easier. Until the 1930s, district and circuit court judges functioned without law clerks. Now even district court judges get two apiece, and they can pick up the slack as a judge's output diminishes. A 2005 study offers a sense of just how long judges are holding on: More than nine out of 10 district court judges die within a year of retiring fully. "I can't remember a judge who went home to clip roses," said Bill Dazey, a longtime assistant federal defender in Indianapolis. "I just feel better working," explained 94-year-old Judge Robert McWilliams of the Denver- based 10th Circuit. "You can't just sit around the house watching TV."

And for nearly a century, Congress has invited judges to work less, starting at age 65, instead of retiring. A judge who goes on senior status, as the arrangement is called, still draws a salary and works as much or as little as he or she likes; meanwhile, the president can nominate a new judge to take the spot the senior-status judge has vacated, at least on paper. It's a system meant to encourage elderly judges to make room for younger ones, without giving anybody the boot.

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There's no question that the arrangement aids the smooth functioning of the judiciary. Senior judges provide the extra manpower needed to keep the federal docket moving, especially at times when the president and Senate are slow to fill vacancies on the bench. (At present, 101 seats are empty, a relatively high number). In 2008, judges with senior status handled more than 18 percent of the caseload in the federal trial courts, double the portion they handled a generation ago.

But the work-as-you-wish arrangement also insulates judges from normal retirement pressures and enables senior status judges to stick around even if they are too enfeebled to do the entire job. Some senior status judges, for instance, only hear cases that can be decided entirely on written motions—like social security or habeas petitions—which don't require the exertion of presiding over a courtroom or the risk of public scrutiny. Judge Owen now decides cases only in this way.

In a similar fashion, the 94-year-old Judge McWilliams generally leaves the heavy lifting to others on the three-judge panels he is a part of. For the most part, he has stopped writing precedential opinions, limiting himself to issuing short orders in less significant cases.

Judges facing age-related mental decline are prone to make rookie mistakes that harm the rights of the people before them. Judge John Shabaz of the federal court in Madison, Wisc., had a reputation as a strict sentencer who resolved cases at a brisk pace. But when he reached his mid-70s, attorneys began to suspect his mind was deteriorating. "He had trouble reading things out loud, such as plea agreements," lawyer David Mandell says. "He would start and stop and start over."

In August 2006, before announcing a 20-year sentence, Shabaz forgot to offer a convicted drug dealer the chance to ask for mercy, a right spelled out in the Federal Rules of Criminal Procedure. The judge reversed the process, first announcing the sentence and then offering the man a chance to speak. The U.S. Court of Appeals for the 7th Circuit called this "the kind of error that undermines the fairness of the judicial process" and sent the case back to a different judge for a do-over. A story about Shabaz appeared in the Capital Times, a Madison newspaper, under the headline "Confusion in the Court." Easterbrook, playing his role as highway patrolman, sent intermediaries to persuade Shabaz not to return from a medical leave for shoulder surgery in 2008. For a while Shabaz resisted, but eventually he acquiesced, a colleague said. He assumed senior status in January 2009 and no longer hears cases.

Sometimes the problem isn't as clear-cut as forgetfulness—a failing that, after all, is relatively easy to recognize. Attorneys say J. Thomas Greene, a U.S. district judge in Utah, seemed to grow more impulsive with age, a common sign that the brain's ability to self-censor is eroding. In 2006, Greene, then 76, presided over the trial of a man charged with lying about the disappearance of a teenage girl. At a proceeding to pick a jury, the judge asked prospective jurors whether they were acquainted, a question meant to keep friends from serving on the same panel. One man answered that he knew one of the other potential jurors, a woman. "I didn't recognize you," the woman exclaimed.

"She didn't recognize you with your clothes on," Greene shot back, shocking the courtroom.

Another impulsive outburst affected the sentence of a serial bank robber. "Maybe I'm a fool to have given you this kind of break twice, but somehow I have a feeling about you," Greene said, before sentencing the man to less than half the prison time called for in the federal sentencing guidelines. The appeals court threw out the sentence in a decision expressing concern that Greene hadn't taken the case seriously enough. Greene stopped hearing cases in 2008.

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