The wear and tear of aging affects everyone. Yet judging is a particularly rigorous job. Judges make enormously consequential decisions every day that affect litigants’ livelihood and liberty. When they can no longer efficiently exercise their judicial duties, it’s time to step down. Sadly, they rarely do.
The Federal Circuit Judicial Council recently suspended embattled 96-year-old Federal Circuit Judge Pauline Newman for one year, following her refusal to participate meaningfully in a disability inquiry under the Judicial Conduct and Disability Act (JC&D Act), the federal judicial complaint process. While the Judicial Council expressed reason to believe that Judge Newman likely suffers from a disability that precludes her from serving, because she refused to provide requested medical documentation, submit to a medical evaluation, or participate in an interview, her disability status could not be properly evaluated. Therefore, the investigation was narrowed in scope to assess whether her refusal to meaningfully participate constituted evidence of misconduct. the Judicial Council found that it did.
I’ve been following the situation involving Judge Newman with interest since the Federal Circuit publicly announced its investigation in March. Investigations are rarely initiated, rarely become public, and even more rarely result in discipline, because these processes typically protect judges, rather than fostering transparency and accountability. The JC&D Act is overseen by fellow judges, creating at least the appearance of a lack of impartiality. Judges are often unwilling to investigate, let alone discipline, their colleagues, due to the judiciary’s code of silence and the perception that if it’s “not my chambers, it’s not my business.” Additionally, law clerks and other judiciary employees are often reluctant to participate in investigations, fearing both retaliation by judges (judiciary employees are not legally protected against retaliation under Title VII of the Civil Rights Act) and reputational harm in the legal community for saying anything negative about judges; or loyalty to their bosses.
Judge Newman’s situation was the confluence of a near-perfect storm. First, her Federal Circuit colleagues seemed to want her to step down, perhaps due to frustrations that she was not pulling her weight. Second, court employees, including law clerks and judicial assistants, were willing – for the most part – to participate in the investigation into their former boss, despite the lack of legal protection against retaliation. Additionally, Judge Newman was like an easy target: she appeared to exhibit symptoms of either a disability, or at the very least, significant wear and tear of aging, evidenced by email threads and conversations with colleagues cited by the Judicial Council investigating her.
Against this backdrop, some in the legal community continue to deify judges like Judge Newman, defending her despite troubling evidence of a health issue that she and her counsel have yet to fully respond to. The legal profession lionizes judges, treating this position as the ultimate gold star. Too many judges cling to their seats on the bench long beyond when many would consider it acceptable to serve, and beyond when most would retire. In fact, according to recent research, nearly seventy-five percent of federal judges die in office, an astounding statistic. Why aren’t more judges willing to recognize their own fallibility and retire? Many other legal roles are less rigorous but no less important.
As I’ve learned more about Judge Newman – as people have reached out to discuss this topic – I’ve endeavored to make it clear that this is not personal, nor is this explicitly about Judge Newman’s age. Yet I question whether any judge should serve forever. Modern medicine has enabled judges to live longer and serve longer. But just because the Constitution confers the protection of life tenure, this does not mean that judges are obligated to serve for life.
Several flaws in the judicial misconduct investigatory process have been exposed and should be corrected. These changes would remove partisan influence and increase the public’s confidence in the judiciary.
The JC&D Act and the Rules for Judicial Conduct and Judicial Disability Proceedings indicate that a special committee can conduct an investigation as it sees fit, including requesting medical records and requesting the respondent judge participate in an interview. However, Judge Newman’s lawsuit against her colleagues rightly points out that the scope is unclear. How robust must the medical documentation be? Who selects the doctor to conduct the medical evaluation? The federal judiciary and Congress should take this opportunity to clarify both law and policy, because Judge Newman won’t be the last judge to attempt an end-run around the process, considering how many judges insist on serving into their 80’s and 90’s.
It is also time to consider a mandatory retirement age for judges, similar to those in more than 30 states and Washington, D.C., recognizing that job performance may decline with age. This would enable presidents from both parties to regularly infuse fresh blood, new ideas, and diversity into every courthouse, while also de-politicizing what has become an overwhelmingly partisan judicial appointments process.
Federal judges should also undergo annual medical evaluations, to identify judges who might otherwise withhold information that implicates their ability to serve. Requiring this for every judge would avoid singling out older judges, while fostering real transparency in the judiciary.
Judge Newman’s situation has exposed for the public an issue that has long remained shrouded in secrecy: judges potentially serving beyond their capacity to do so. Life tenure and judicial fitness are connected. I worry the mixed response from some in the legal community sends the wrong message. Judicial investigations are rare and should happen more often. This necessitates empowering those with information – including judges with information – to come forward. Questioning the Federal Circuit Judicial Council’s motives for initiating the investigation seems contrary to the larger goal: ensuring that judges who preside over cases affecting litigants’ livelihood and liberty, are fit to serve. No judge should be above the law, and every judge’s conduct should be subject to public scrutiny when it affects their colleagues, their staff, and those who appear before the court.
Aliza Shatzman is the President and Founder of The Legal Accountability Project (LAP), a nonprofit aimed at ensuring that law clerks have positive clerkship experiences while extending support and resources to those who do not. Aliza earned her JD from Washington University School of Law in St. Louis, MO in 2019. Aliza regularly writes and speaks about judicial accountability. She has been published in numerous forums, including the Harvard Journal on Legislation, Yale Law & Policy Review, UCLA Journal of Gender & Law, NYU Journal of Legislation & Public Policy, Administrative Law Review, Above The Law, Law360, Slate, Ms. Magazine, and Balls & Strikes. Reach out to Aliza at Aliza.Shatzman@legalaccountabilityproject.org to learn more about LAP’s efforts to transform the clerkship application process–and the legal profession–for the next generation of attorneys.