April 13, 2009

Should Congress scrutinize the aging Supreme Court Justices and lean on them to retire?

Paul D. Carrington thinks so:
What can we do about justices who cling to power that they are no longer completely fit to exercise? District and court of appeals judges are subject to Circuit Judicial Councils, which look into citizens’ grievances against their conduct (though not their specific rulings).

Councils may then investigate and conduct hearings in confidence, and then perhaps order that at least temporarily no further cases be assigned to the judge whose conduct is in question. A council may censure a judge either privately or by a public pronouncement, or request his retirement. If a judge rejects a council’s advice, it could issue a statement to be considered by the House of Representatives that might initiate an impeachment proceeding.

Congress could establish a very similar process to apply to the justices....

This is not to suggest that any of our current Supreme Court justices should be addressed by such a discipline committee. But the mere existence of such a process would serve to remind our mortal justices that they have a right to serve during good behavior, not for life.
I don't think this is such a great idea. We all can see what the Supreme Court Justices are doing. There's no need for a special council with the work of scrutinizing them. It would either be too political — pressuring Justices based on how much various politicians like or want to appear to like the outcomes they've voted for — or it would be suspected of being that.

All that is needed is more frank discussion of age and its effects on the Justices, who don't get enough real-life feedback. Take this article — "Ginsburg Gives No Hint Of Giving Up the Bench," by Robert Barnes — published yesterday in the Washington Post:
The symposium on Justice Ruth Bader Ginsburg's life on and before the Supreme Court had all the trappings of a grand finale: laudatory tributes, scholarly evaluations of her jurisprudence, a running theme about her love of opera and her unfulfilled desire to be a great diva.

Conspicuously missing was any mention of an exit from the stage.

If anything, Ginsburg's appearance at Ohio State University's Moritz College of Law -- and at a host of other events since the 76-year-old justice had surgery in February to remove a cancerous pancreatic tumor -- seemed intended to send a contrary message....

In a video tribute shown at Friday's day-long symposium, Chief Justice John G. Roberts Jr. offered "my warm congratulations on the occasion of your reaching the midpoint of your tenure."
The midpoint. Get it? Oh, isn't that cute? Nothing but warm support and encouragement for staying on as long as her heart desires it.

But I bet we can't stop talking like that. It would be mean. And it's wrong to discriminate based on age. Blah blah blah blah. Ugh! Maybe I should endorse Carrington's proposal!

46 comments:

Jim Howard said...

I've always thought that Federal Judges ought to have to face an up or down vote from the people in their district (or the whole country for Supremes) every 10 to 12 years. Not a contested election, just a 'should Judge/Justice Smith keep her job?', yes or no.

That would go a long way to making the United States a more democratic country while still giving Judges the independence they need.

Lawgiver said...

First take driver's licenses away from anyone over 80.

Paul Zrimsek said...

Wouldn't we be crossing an awfully bright line if we base assessments of "good behavior" on anything other than morals? If "good" really means "good and competetent", that additional component opens the door to an awful lot of politicizing.

rhhardin said...

Having a range of ages already is a structural guard against senility. The senile, if any, don't have a majority vote.

ricpic said...

Congress: Ain't enuf supervisin' goin' on 'round heah.

Supremes: Get your damned ignorant ape paws off us!

hdhouse said...

For every aged justice removed we should of course remove one of the younger twits at the same time. There is as much to be said about the prospects and potentials of senility as there is about the pit and pratfalls of immaturity.

Richard Dolan said...

NY has long had a mandatory retirement age of 70 for Court of Appeals judges (same for the trial court and intermediate appellate court, although there is a procedure whereby those judges can serve to 76). It works just fine here even if it occasionally deprives the State of the services of an exceptional judge. But the larger truth is that no one is indispensable, even a brilliant judge.

Life tenure has its advantages, the principal one for these purposes being that it insulates a federal judge from ever being concerned about what comes next in his legal career. Thus there is no potential need to curry favor while still on the bench with whomever might be important to the judge in moving on to that stage. That doesn't strike me as a particularly weighty factor. Judges, even those with life tenure, want to be well thought of among whomever they regard as their peers. The possibility of 'playing to the crowd' (however defined) is probably more significant in impacting on judicial decisionmaking than possible career moves.

More frequent turnover of federal judges would likely make the courts more response to political changes in the larger society. I suspect that would have, at most, a marginal impact on most of the work of the federal courts -- interpretation or application of federal statutes and regulations. It might have a larger impact in the relatively small number of cases turning on constitutional interpretation, where a court is asked to review the constitutionality of legislation. That was certainly the point of FDR's court-packing proposal, which was functionally a kind of mandatory retirement rule without the inconvenience of amending the constitution to get rid of life tenure for federal judges.

Such a change might make appointment to the federal courts even more of a political battleground than it is today. I think the advisability of making such a change would turn on whether it made the courts less adventurous in imposing judicially selected values in lieu of legislatively enacted ones. But if courts are going to engage in that process, I don't see the argument for preferring judges empowered for decades after their appointment to exercise such power, rather than judges selected more frequently by the political majority.

Joan said...

Isn't Carrington's proposal reminiscent of FDR's court-packing scheme, wherein he proposed appointing a new justice for every justice already seated who was over the age of 70 who declined retirement?

We have, therefore, reached the point as a nation where we must take action to save the Constitution from the Court and the Court from itself. We must find a way to take an appeal from the Supreme Court to the Constitution itself. We want a Supreme Court which will do justice under the Constitution and not over it. In our courts we want a government of laws and not of men.

I love how FDR sounds all lofty on this issue, but what he really wanted to do was get rid of the old bums who kept voting down his radical ideas.

sonicfrog said...

First Thought - since New Deal politics is so back in style, why doesn't Obama propose a bill that would expand the Supreme Court and allow him to appoint new judges to "complement" and help the overburdened ones over 70 1/2 years of age.

MadisonMan said...

The workday for a Congressman is more strenuous than that of a SC Justice. I think if Congress scrutinizes aging Justices, it should do the same for its own again membership.

MadisonMan said...

aging, not again.

Peter V. Bella said...

Only if we could remove Congress critters for stupidity, crass and crude behavior, and dishonesty.

Harry Reid and Barney Frank would have been gone long ago.

sonicfrog said...

Crap. Joan beat me to the punch.

PatCA said...

Might Mr. Carrington be an Obama supporter?

I smell a rat, as Joan does.

Fen said...

I would much rather have someone/something scrutinize Congress, something independent and outside of the legislature.

These congress-critters [Dem and Rep] are little Czars that should be drageed out into the snow.

Lem said...

This would spell disaster for the independence of the SCOTUS as a co-equal branch of the government. The “advice and consent” hearings will then really become a job interview.

This is nothing more than a power grab.

Is anybody considering a council to approach Senator Bird?

Lem said...

Here is the one branch that has enjoyed sustained high approvals by the people being though of as in need of repair?
The one dam thing that actually works!!!

Lem said...

I better not read the article and find out who this simpleton might be.

David said...

It's a lifetime appointment.

It's not a lifetime appointment subject to review by some committee who are delighted to have influence over something important.

If a Justice is really losing it, there are enough principled people, starting with the other Justices, who could intervene.

The system we have has worked pretty well for over 200 years.

Joe said...

When we repeal the 17th amendment, we could add a provision to prohibit all elected and appointed federal officials from serving past the age of 75. I'd also prohibit anyone from serving more than 20 years in any appointed position and 12 in any elected position.

Lem said...

Joe I respectfully disagree.

We should be able to make judgments on a case by case basis and not tie down future generations with our present and all too limited notions of what constitute a sound age or a sound mind.

We know next to nothing about how the mind works.

John Stodder said...

Wrong on so many levels:

-- Generalizes about the effects of age on individuals. For every judge who really ought to retire at 70 due to diminished capacity, you can probably find one who is productive and mentally acute at 90.

-- But even to the extent there is some logic to the idea of checking after the mental abilities of the judge, it should not be Congress or the executive branch that does so.

-- And, Lawgiver is almost right. If we're willing to let older people suffering from mental degeneration in effect continue to drive until something really bad happens or until their physician rats them out (assuming they even go to a physician), then we really aren't in a position as a society to pressure a judge who is surrounded by helpers who can help him or her get through the effects of aging. Ruth Bader Ginsburg isn't going to cause 10 innocent people at a farmer's market in Santa Monica to suddenly die violently. She's not a priority.

Ignorance is Bliss said...

I'd like to see an 18 year term for Supreme Court Justices, with the terms staggered every two years, so that each president gets to appoint two justices per term.

This would remove the temptation for presidents to pick younger justices just to have a longer influence, and remove the temptation for judges to hang on until they have a favorable president to pick their replacement.

Lem said...

In a way it’s like denying them habeas corpus.

(or did I go too far?)

Lem said...

Are we willing to deprive future generations of an Oliver Wendell Holmes? (Served into his 90’s I believe) On top of saddling them with debt as far as the next galaxy?

Are we really that presumptuous?

Joe said...

Forcing retirement at age 70 or 75 isn't about diminished mental capacity, but about keeping government from growing stale. We now have a heavily geriatric senate and the negative results are obvious.

Lem said...

Stale?

These are the top gun candidates, the cream of the crop, the best legal minds in the country.
We are not talking about a third base coach for the Pittsburgh Pirates here.

Revenant said...

How does one go about "leaning on" someone to retire when that someone has a guaranteed job for life? What are you going to do, threaten their families? Oh, wait, I've got it -- pass a 90% tax on the property of all judges over the age of 80.

Cedarford said...

"rhhardin said...
Having a range of ages already is a structural guard against senility. The senile, if any, don't have a majority vote."

NO, not on a court where there is a 5-4 margin and the senile or impaired elderly judge, or more appropriately his/her clerks - are the deciders.
The problem is even worse where a panel of only 3 judges is involved.

______________
At one time, Federal judges were pushed hard to retire at 70 or so, not for the least to push out some old beneficiary of patronage to enjoy a cushy retirement so powerful politicians could then place a contemporary connected lawyer into a highly desired patronage slot.
Congress voted in the mid-1920s, after the Fed judges bitched, that they would not pressure them frther but leave it to "the courts to decide amongst the judges themselves who is or is not in good comport with the duties of office.
Back then, the average age of Fed Judges was in their late 50s and they served an average of 7-8 years. The SCOTUS handled 300 cases a year. Now the average age at SCOTUS is 69, terms are over 10 years on average, and at SCOTUS the "workload" has decreased down to about Florida retirement community level - 75 cases a year.

______________
MadisonMan said...
The workday for a Congressman is more strenuous than that of a SC Justice. I think if Congress scrutinizes aging Justices, it should do the same for its own again membership.


You forget that Congressmen and women do not have lifetime tenure. They have to present themselves to voters for reaffirmation, including voter assessment of their physical and mental health, every 2 years.

And voters can see and act on moral deficiencies, a major shift in ideology they did not put them in office for, or severe slippage in the level of effort and quality the Congressman/woman puts into their work.

Not so Fed justices, who continue to show up with moral deficiencies that would get them tossed out of elective office, or free to pull a "Souter". And age is not the only reason performance severely degrades,,sometimes you get a Sandra Day O'Connor - whose work effort, quality became more vapid and lazy as she did...and her decision to act more as a legislator who rationalized law and ignored precident to fit the legislation she wanted to craft law to fit to. (As Scalia noted in his brilliant dissents just shredding & trashing O'Connors apparant judicial fitness and temperment in her later years.)

Cedarford said...

I erred with a typo, I meant to say Fed judge terms are now over 20 years on average, SCOTUS even longer.
Only Castro and QE II have lasted in office longer than certain US SCOTUS justices.

Cedarford said...

Joe said...
Forcing retirement at age 70 or 75 isn't about diminished mental capacity, but about keeping government from growing stale. We now have a heavily geriatric senate and the negative results are obvious.


I agree with your point, but would agree even more if you had led with Forcing retirement at 70 or 75 isn't JUST about diminished _____ capacity....

Clearly, we have had Fed judges justices that would have been the equivalent of permanently or temporarily removed from the bench - had they had similar mental or dehabilitating physical affliction such they couldn't do their job well - in any other position of government or private industry - save business owner or Being Strom Thurmond after he hit 95.

hdhouse said...

PatCA said...
"I smell a rat, as Joan does."

Hmmmm and Pat/Joan...how do rats smell? bad breath? poor general hygiene? Do tell!

I'm not so sure that smelling a rat is as bad as being able to tell when you do.

Chip Ahoy said...

Your many reasoned thoughtful responses here, your educated wary cynicism coupled with your broad range of knowledge along with your fine good humor impresses and delights me and renews the affection I hold for my compatriots.

John Lynch said...

Eugene Volokh's idea of staggered 18 year terms, so every President gets 2 nominees, makes a lot of sense.

Steph said...

I was terrified watching an interview with Justice O'Connor and James Rosen and she couldn't remember her favorite movie. Rosen added at the end of interview that her favorite movie was Gone With The Wind. Seriously, she sat on the highest court of the land and couldn't remember a. a movie she liked and b. a wildly popular movie.

Iapetus said...

It is interesting that none of the comments here mention SC justices who may have served not only long past their primes but were possibly senile for many years before they left the bench. I recall reading various rumors about Wm O. Douglas and Thurgood Marshall, but whether their faculties were as far diminished as the rumors claimed, I've never determined. I am certain that when a sitting justice's health begins to fail and he is no longer functioning, it is widely recognized not only by the other sitting justices, but also by the President, members of Congress, and by members of the bar. Members of the Court don't talk about each other in public, which is understandable. The Chief Justice and the President can do little to hasten the retirement or removal of a justice. The only arrow they have in their quiver is personal persuasion. Impeachment of a justice, the nuclear option, is too extreme, and in any event exposes the Court to potentially serious questions about the past decisions in which a disabled or senile justice may have participated and cast a deciding vote.

Larry Sheldon said...

Yes it is a packing plan like FDR's for the very same reason.

Obama has severl things he has been told to do and he won't be able to carry some of them off without a cooperative Court.

People told me this would happen if I voted for Palin.

Michael Hasenstab said...

How about starting by requiring all Congress persons to retire a the end of the term during which they have reached age 60? Or perhaps mandatory term limits.


Seems to me that the SC is the one thing in DC that works okay. Big mistake to let the pols fuck with it.

TMink said...

"Yes it is a packing plan like FDR's for the very same reason."

Exactly, and you just beat me to it!

Trey

Lem said...

Seems to me that the SC is the one thing in DC that works okay. Big mistake to let the pols fuck with it.My point exactly - thank you.

Giving experimental drugs to an otherwise healthy body.

Fûz said...

"We now have a heavily geriatric senate and the negative results are obvious."

That body was supposed to be geriatric. It was designed to be geriatric. Whence comes the name "senate"?

The negative results of our Senate today have nothing to do with their ages, and everything to do with their being elected rather than appointed by their respective States.

Before we go hacking the software, we should understand the software, both as it is today and as it was before the last round of hacks. Maybe instead of adding another round to the hacks, we should undo the last round.

Repeal the 17th. Replace it with nothing.

coriolan said...

I won't take sides in all this learned billingsgate- I'm just here to relate a rather amusing SCOTUS anecdote.

In 1867, the 73-year-old SC Justice Robert Grier - nominated by Polk in 1845 - began to show distinct signs that he was no longer up to the demands of the Supreme Court. In 1870, his colleagues - including Stephen Field (appointed by Lincoln in 1863) - quietly approached him, pointed out the symptoms of his decline, and asked how he thought best to address them. Grier took the hint, and submitted his resignation.

Fast forward a couple of decades - by the early 1890s, it is Field who is unable to keep up with the demands of his office. However, he was determined to set a record as the SC justice with the longest tenure (John Marshall held the record at this point). He also strongly disliked Presidents Cleveland and Harrison, and did not either of them to nominate his successor. Despite his incipient senility, Justice Field looked like an American variant of an Old Testament prophet, and nearly all who knew him held him in awe.

His colleagues decided that they needed to confront him on this issue, despite their oonsiderable anxiety. They decided the most diplomatic approach would be to remind Field of his role in the 1870 resignation of Justice Grier. So, the second eldest member of the Court, Johm Marshall Harlan, approached Field to ask him if he remembered his role in Grier's resignation. Field gave a great sigh and declared, "Yes, and a dirtier day's work I never did in my life!" No one dared to approach Field on this topic again.

Field finally resigned in 1897, allowing Pres. McKinley to appoint his successor. His tenure of 34 years and seven months surpassed Jon Marshall and made him the longest serving Justice (William Douglas currently hold the record at 36 years and 7 months)

David said...

I fely it would be like taking the woman off the toilet after two years to remove Supreme Court Justice (WI) Abrahamson at the age of 76. She is certainly draining the Wisconsin gene pool.

Larry said...

The American public should first do some homework into the people that wrote this article and those supporting it publically. Mr. Carrington is 78 years old and those supporting this are right there with him in age. This is the pot calling the kettle black people. The only other link tying these people together is they are all heavy democratic financial supporters. This is an old man using his years of public service to start a political movement. When he should give way to a younger professor and go sit at the park for a while.
Good Day All................

Eppur Si said...

I would like to see Justices serve a single 20 year term. This would not only solve the problem of Justices holding on to their seats long after their qualifications have deteriorated, it would also help end the practice of appointing Justices based on their age so they can serve longer, and the practice of Justices timing their retirement to influence the party of the President who replaces them.

hdhouse said...

Steph said...
I was terrified watching an interview with Justice O'Connor ...."


BOOOO!! (bet ya jumped out of your skin!) Steph, if this is your terror threshold we got to get you out more...Glad it was a Clarence Thomas interview....Deep Throat springs to mind.