Tuesday, April 18, 2023

Killing lifetime appointments?

Lots of press these days about the lifetime tenure of federal judges. Bloomberg Law has two articles:

See Prof. Xiao Wang's It’s Time to Abandon (or Closely Monitor) Judicial Life Tenure -- Northwestern Pritzker School of Law’s Xiao Wang says that life tenure for the federal judiciary doesn’t promote judicial independence or the development of law as the Framers expected, and should be repealed or reformed.

Life tenure is a unique aspect to our federal judiciary: No other country affords that protection to its judges. The Framers justified life tenure as necessary to safeguard judicial independence and promote development of the law. My research, though, has challenged the first premise: the link between a lifetime appointment and judicial independence. In a study published earlier this year, I show that federal judges are increasingly making retirement decisions in a politically strategic manner.

And see Standoff Over 95-year-old Judge Shows Downside of Lifetime Jobs 

  • The Newman episode proves that the traditional checks and balances for aging judges—colleagues or family members nudging them toward retirement—might not always work. It’s an issue that won’t go away with the average age of federal judges now 69.
  • The Newman episode is reminiscent of a situation in 1975, when it became clear that Supreme Court Justice William O. Douglas could no longer do his job after a stroke but wouldn’t step down. In that case, the court decided to ignore Douglas’ vote on critical appeals, and held over cases where his vote was decisive.
  • Richard Posner, a judge for the Seventh Circuit Court of Appeals, retired unexpectedly in September 2017 and months later was diagnosed with Alzheimer’s disease, according to reports.
  • Some states have tackled this issue by having mandatory retirement ages for their judges. More than 30 states and the District of Columbia have them for appellate or general jurisdiction court judges, according to the National Center for State Courts.
  • Xiao Wang, a clinical assistant professor at Northwestern University, pointed out in a Bloomberg Law article that more than one-tenth of federal judges are now over age 80.