No Judge Should Serve Forever

// A judgeship is a position of public trust. Judges are stewards of the people they serve.

Right now, 96-year-old Federal Circuit Judge Pauline Newman, who joined the bench nearly 40 years ago, is embroiled in a rare public dispute with her Federal Circuit colleagues about her fitness to serve.

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By now, everyone has probably heard the backstory about Newman, who sued her judiciary colleagues earlier this summer to avoid taking a cognitive test. This controversy has larger implications for judicial ethics. Questions about judicial fitness will continue to arise, as judges live and serve longer — perhaps beyond their capacity to effectively exercise their judicial duties.

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In March, the Federal Circuit Judicial Council, led by Federal Circuit Chief Judge Kimberly Moore, announced an inquiry into Newman’s health, alleging she might suffer from a disability that precluded her from efficiently exercising her judicial duties. The Judicial Council cited evidence that Newman seemed confused in interactions with staff, that she was significantly slower than her colleagues at handling cases and issuing opinions, and that she violated the confidentiality provision of the Employee Dispute Resolution (EDR) Plan.

Throughout the spring, Newman refused to participate in the inquiry into her health. Her cases were reassigned, further straining the Federal Circuit’s workload. The inquiry was expanded to include whether Newman’s refusal to participate constituted evidence of judicial misconduct.

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Then, Newman sued her colleagues, alleging violations of the First, Fourth, and Fifth Amendments and demanding that her caseload be restored. She also indicated that the Rules for Judicial Conduct and Judicial Disability Proceedings surrounding disability inquiries and medical evaluations were unclear because they did not delineate the process for providing investigators with medical records or submitting to a medical evaluation.

Newman later provided some medical documentation by a doctor she selected. Her complaint states that Newman’s “cognitive function is sufficient to continue her participation in her court’s proceedings.”

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In June, due in part to Newman’s noncompliance with the disability inquiry, the Judicial Council dropped the inquiry into her disability status, narrowing the scope of the inquiry to whether Newman’s noncompliance in the proceedings against her was evidence of judicial misconduct. In July, Newman and her colleagues were ordered to participate in mediation.

Why does this situation have larger implications for the future of our judiciary? Because it evidences both the lack of effective judiciary processes to investigate and potentially remove judges who may no longer be fit to serve, and further underscores that judiciary processes have not kept pace with modern medicine.

Because Newman is an Article III federal judge, she enjoys life tenure, or tenure “during good behaviour.” While federal judges can be investigated and disciplined — including through public sanctions and temporary reassignment of cases, pursuant to the Judicial Conduct and Disability Act of 1980 — they can only be removed by congressional impeachment, which is exceedingly rare.

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We occasionally hear about judicial misconduct inquiries — either when a judge steps down to evade an investigation or when an investigation becomes public. Much less attention is paid to the disability provision of the Judicial Conduct and Disability Act. While some number of judges engage in misconduct, most judges experience the wear and tear of aging. Yet neither judiciary policies nor federal laws have kept pace with modern medicine. While it was once expected that a judge’s colleagues or family members would gently encourage them to step down when they were no longer fit for the rigors of judicial service, that is not an effective mechanism to ensure that judges who enjoy life tenure will accept their own fallibility when the time comes. Historically, they have not: too many insisted on remaining on the bench into their 80s and 90s.

This controversy is an example of the constraints of current judiciary policies, absent a change that would extend the bounds of judicial discipline. Dropping the inquiry into Newman’s alleged disability sets a poor precedent, as this issue will continue to arise. Laws and policies must be clarified so judges understand the implications of withholding medical information that implicates their fitness to serve. Judges are public figures: what should happen when they assert a right to privacy, yet their health affects their ability to do their job? Unlike other industries, where medical evaluations are conducted by neutral physicians selected by an employer, sometimes with input from the employee, the judiciary has no such clear process.

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Newman’s refusal to step down doesn’t just affect her: it affects those around her — including the litigants whose cases were unreasonably delayed on her calendar and the colleagues and court staff whose workloads increased as a result of her unwillingness to step down and make way for a new appointee. Delayed rulings have significant implications for litigants’ livelihoods and liberty, yet litigants rarely get a window into behind-the-scenes judiciary machinations. They have no recourse if the judge handling their case does not do so in a timely fashion.

The Federal Circuit handles patent litigation rather than, for example, criminal matters, so litigants are somewhat differently situated. However, based on the judiciary precedent set here — not pursuing an inquiry into a colleague’s alleged disability — what will stop the next federal judge, who presides over criminal matters implicating litigants’ liberty, from simply trying to outlast investigators’ patience? The judiciary needs enforceable policies to ensure that judges who may suffer from a disability that affects their ability to exercise their judicial duties and whose calendar evidences substantial delays, cannot withhold medical information from their superiors like Newman appeared to.

Congress and the federal judiciary should take this opportunity to revise both the Judicial Conduct and Disability Act, and the rules for judicial conduct and judicial disability proceedings, so that they are prepared when the next situation like Newman’s arises. Several other areas for reform should be explored, including term limits or mandatory retirement ages (which have been implemented in many states and the District of Columbia) or routine medical evaluations for all judges.

In order to foster public confidence in the judiciary, judges presiding over cases must be fit to serve. A judgeship is a rigorous position. When a judge is no longer able to efficiently execute their judicial duties, considering the consequential decisions they make not just about individual litigants’ cases, but about legal precedent, they should step down. And if they won’t, there must be effective processes to remove them.

Furthermore, when elderly judges cling to their seats on the bench, it precludes new, young, diverse judges from taking the bench, who could provide a diversity of viewpoints. This creates a pipeline-to-the-bench issue.

A judgeship should be considered a job like any other — subject to the same laws, regulations, and expectations that we place on others in powerful positions of public trust. We should hold judges to the highest ethical standards, not the lowest. This necessitates ensuring that those who interpret our laws are fit to serve. Failing to enforce judicial accountability, and failing to ensure that the law is expediently interpreted, decreases public confidence in the judiciary. No judge should serve forever.

Aliza Shatzman is the President and Founder of The Legal Accountability Project, a nonprofit aimed at ensuring that law clerks have positive clerkship experiences, while extending support and resources to those who do not. She regularly writes and speaks about judicial accountability and clerkships. Reach out to her via email at [email protected] and follow her on Twitter @AlizaShatzman.

Topics

Aliza Shatzman, Competency, Courts, Judicial Ethics, Legal Ethics