John R. Byrne
Federal judges have life tenure. But how long should they serve? In 2023, the average retirement age in the United States was 62 years old. But, according to this recent article from NBC News, the average age of a federal judge is 69. And though federal judges can take senior status starting at age 65, many who are eligible choose not to do so.
Is there a way to further incentive judges to take senior status when eligible? And is that even necessary? As the article discusses, the average age of those serving in other branches of government has also increased. And in cases where there are concerns about the competency of a federal judge, colleagues have stepped forward to gently (and sometimes not so gently) pressure them to step down.
What do you think?
Why is King still allowed to hear cases? No business presiding... for the past 15 years!
ReplyDeleteAmend the constitution. 10 year terms. You either get promoted to the next bench up (for a fresh term), or you leave the bench. SCOTUS can have a 15 year term since there is no elevation from there. Under this system, a truly gifted jurist will still serve for decades, but most will not. Each Article 3 judge will have more than enough time to refine his/her skills on the bench and to do good (if they are capable). But the term will not be so long that they grow stale or drunk with power. And yes, 7:05 is absolutely right.
ReplyDeleteMany—I would say most—USDC judges really don’t want an appellate court job. So, your plan is really a solution looking for a problem. What you consider a promotion is not that at all. And I assume based on your model that there would then be no direct appointments to the appellate courts or SCOTUS? Plan sounds awful.
DeleteRemember what happens when you assume. I have not suggested in any way that direct appointment to the Circuits or SCOTUS wouldn't be available. Also, if the district court judges don't want appellate seats, they don't have to take them. The idea is to get people off the bench and to circulate fresh blood. The problem is stale judges serving in the same seat for decades. Another solution would be to amend the constitution to have a mandatory retirement age of say, 65. But that would exacerbate the existing problem of politicians racing to the bottom to find the youngest appointees they can appoint with a straight face so that their picks stay on the bench for as long as possible. A fixed term of years would keep the bench fresh. Because of the nature of SCOTUS, we could perhaps also amend the constitution to create fixed staggered terms so that there is automatically a vacancy every year and if a justice dies or retires mid-term, his/her replacement serves out the rest of the existing term and not a full 15 year term. This could cool some of the political game playing that happens with the retirement, appointment, and confirmation process.
DeleteUnderstood but then your “promotion” model makes no sense. One can’t get promoted in the way you suggest when there won’t be any openings. So, strong people should leave their practice for a ten year judicial stint which would come with no pension? Not happening.
DeleteSure strong candidates would take the job - just not in their 40s. Which is good. And again, be careful with your assumptions. Who says they can't have pensions? As I understand it, retired judges are entitled to pensions now. We may have to play with eligibility a bit. But it's certainly feasible.
DeleteYour original comment was “Amend the Constitution. 10 year terms.” And you want the taxpayers to also fund pensions for all those people?? It’s not a “be careful of your assumptions” issue and it’s not about retired judges most of whom served 25+ years having pensions now. It’s simple common sense. This is a bad idea.
DeleteSo Mr. Critic, as I often say to my wife when she shoots down my restaurant suggestions, if you don't like my suggestions, fine, then suggest something else. Or is it simply your contention that the current system is perfect and not in need of any improvement?
DeletePerfect? No. But broken? No. You certainly seem like a solution looking for a problem. And as far as assumptions go since you like to bring that up so often, and since you brought up your wife, don’t assume she’s happy. You don’t exactly sound like a real joy.
DeleteSheesh that got personal fast. Project much?
DeleteHere are some more facts for the discussion.
ReplyDelete1. Congress codified "senior status" in 1919—a judge who reached the age of seventy with at least ten years of service as a federal judge was allowed to retire and receive a pension for the rest of their life; afterward, a judge who qualified for retirement could assume senior status.
2. In 1919, the average life expectancy for men was 53.5 and 56 for women. (Although all judges at this time were men). Today, the ALE is 79.25. So, when codified, the age for S/S was significantly higher than the ALE, while today the age for S/S is significantly lower. By the way, the U.S. ranking for ALE is 60th in the world.
3. What do the cross-tabs show about the demographics of those who do not take senior status? Are there more of those judges in states like ours where there are two Senators in the opposition party? Look at Wilson and Scola, they took senior well in advance of the election and their successors may not be confirmed. I also don't know when the tradition of trying to wait to take S/S until the party in power at the time of appointment is in power started. Also, do we know from the article the average delay in taking S/S is in terms of years?
4. Does the federal judiciary work better by pushing out S/S eligible judges for the President to appoint 35-year-olds.
5. The real issue, as alluded to in the article and the post, is about older judges who cannot do the job. There's no easy answer to that question. And S/S doesn't solve that problem because senior judges
still hear cases.
6. Finally, the concept of senior status may be unconstitutional anyway. https://www.repository.law.indiana.edu/facpub/365