Wednesday, January 19, 2011

In defense of old judges

The blawgosphere is all aflutter about this Slate article criticizing life tenure for federal judges because some really old judges are making mistakes. As if young judges don't. (See the cover of the DBR today about a young Broward state judge who is defending himself before the JQC because he "made a mistake.")

The WSJ summarizes some statistics from the article:

About 12 percent of the nation’s 1,200 sitting federal district and circuit judges are 80 years or older;

Eleven federal judges over the age of 90 are hearing cases—compared with four just 20 years ago;

The number of octogenarians and nonagenarians on the federal bench has doubled in the past 20 years.

The increase, explains the Slate piece, is largely attributed to a few factors. Life tenure for federal judges is written into the Constitution; people are living much longer lives than they did in 1789; and the job of a federal judge has over the years actually gotten less taxing in many ways.

So what? I miss the old (school) judges from our District -- Davis, Roettger, Spellman, Atkins, Highsmith, etc. Each of them (and others that I'm forgetting -- I must be getting old) had a real sense of justice and brought that to each case. The stories in the Slate piece are horrific, but if there are particular judges who are having issues, then that should be addressed on an individual basis. I don't like the idea of having mandatory retirement for judges. I think they have that in the state system, and it forces good judges off of the bench.

Interestingly, our bench in the Southern District of Florida is now a very young bench. We have no active district judges in their 70s, 80s or 90s. Our Chief judge is in his 50s. Our "older" judges have taken senior status. But even they are young. For example, Judge Huck turned 70 last year, but he seems much much younger and is on top of his game. It would be awful if we forced good judges to retire because they hit a certain age.


Anonymous said...

You say "[i]t would be awful if we forced good judges to retire because they hit a certain age." Of course, we'd love to keep "good" judges for as long as we can, but the the problem is that we need a way to get "bad" judges to go. If we are concerned, after a long, hard look at the issue, that at a certain age, more likely than not the bad outweighs the good, then, yes, we lose some good judges with a bright line rule, but so be it.

Is there a shortage of strong, able, "good" young citizens who could fill the void? I think the country has a lot of fine individuals that could. Like term limits for other branches of our government. Yes, sometimes good people's careers in the public sector are cut short, but we can get by with those waiting in the wings.

A practitioner turned judge I know told me that he always was sad when a great judge stepped down too early, but never mad. When he got mad was when a great judge stayed too long, until he was no longer great.

Paladin51 said...

I agree with anonymous. I can analogize with the saying we criminal defense lawyers use: It's better to let ten guilty persons go free than imprison one innocent person. I say it's better to let ten good judges go than keep one bad one. The bad ones really spoil the barrel and the effects are lasting. If we do our jobs right, the ten good judges will be replaced with equally good judges. And, I might say, my definition of a good or bad judge may be different from yours. And younger people need to be given a chance to advance into these positions, as well.

Anonymous said...

Dealt with individually?

When was the last time the 11th Circuit received a submission (from a practicing lawyer or a judge) that a sitting judge was no longer competent? I would bet never. Although, there have been judges that are simply too old to do the job right. This does not make them bad judges, but at some point it is incumbent on their colleges to recognize there is a problem.

Anonymous said...

We simply need more federal judges. Look ar all the unfilled vacancies many of which have been labeled judicial emergencies and yet they are not acted upon because of partisan BS. I am sure many of the older judges are staying on because they feel a sense of obligation to their colleagues. They are on senior status so their retirement would have no effect on creating more vacancies. I bet many have been asked to stay on by thier younger peers. Stop debating things that aren't going to pass just for soundbites and to raise money and do your job Congress - fill the !@#$% vacancies.

Anonymous said...

what about Kehoe,Eaton, Lenore?