Following a campaign of pressure, Democrats succeeded in getting President Joe Biden to resign. However, it is far more difficult to remove a federal judge from office.
WASHINGTON Judge Pauline Newman, who is the oldest full-time federal judge on the court at the age of 97, is difficult for her colleagues to remove from the bench despite doubts about her capacity for the work.
She has been embroiled in a court struggle for over a year with her fellow judges on the U.S. Court of Appeals for the Federal Circuit, located in Washington, D.C., who have attempted to exert pressure on her to resign. After retaliating, Newman is still appealing a ruling that prevents her from hearing cases.
President Ronald Reagan nominated Newman in 1984 to the court that hears appeals in intricate patent issues, among other matters. She faced consequences when she declined to submit to a neurological examination that was required as part of a judicial disability inquiry.
In an interview with NBC News, Newman stated, “It’s been devastating to me.” “It feels like this business has taken up a large portion of my life, and now it seems meaningless.”
A multipronged pressure campaign succeeded in persuading President Joe Biden to resign after Democrats concluded that he was unable to lead the party following his appalling debate performance.
However, lifetime nominations to the Supreme Court and federal courts are made, and there is no simple way to remove them.
Given that individuals are living longer on average, a lifetime appointment can now span many decades. A recent research found that the average age of a federal judge is 69, and that there is no effective means to remove a judge.
Her lawyer, Greg Dolin, a former legal clerk at Newman, remarked, “That’s a feature, not a bug.” “A judge cannot be removed, but I don’t think that should be changed. That is cause for celebration.
However, some judges do not want to serve as permanent members of the judiciary because they worry they may lose their mental capacity, and courts have implemented procedures to support them.
“The judges have extremely difficult work ahead of them. Judge Phyllis Hamilton, a veteran federal district judge in Northern California, stated, “We have an obligation to the public to try to be at our best both mentally and physically as we perform and discharge those duties that can have very wide impact.”
acute issue
Retirement pressure on judges often only makes headlines when one of the justices on the Supreme Court is involved. Liberals called on Justice Ruth Bader Ginsburg to resign when President Barack Obama was in office, but she refused. She had experienced many cancer episodes and was in her early 80s at the time.
After she passed away in September 2020 at the age of 87, then-President Donald Trump had the opportunity to appoint conservative Justice Amy Coney Barrett in her stead. This was a significant development that led to the court’s current 6-3 conservative majority.
Although the Supreme Court receives the most attention, the sheer volume of justices on lesser courts makes “the problem probably even more acute,” according to Gabe Roth, executive director of the judicial watchdog Fix the Court.
The Administrative Office of the U.S. Courts reports that as of last year, there were 870 federal judges in active service, including the nine justices of the Supreme Court and judges on the 13 appeals courts and the 94 district courts.
An NBC News examination of data on judges from the Federal Judicial Center, the research arm of the judiciary, revealed that of those, 70 district judges and 34 appeals court judges are eligible to choose senior status, which results in judges taking on a lower role but maintaining their title, or retire on full salary.
Age is a factor in more than simply the judiciary and presidential contests. According to the Congressional Research Service, the average age of members of Congress has likewise increased, with the average age of senators being 64 and members of the House of Representatives being almost 60. The spotlight last year was on Sen. Dianne Feinstein, a Democrat from California, who shown cognitive deterioration during her time in office before passing away in September at the age of 90.
It has prompted some to argue that the US is slowly moving toward becoming a gerontocracy—a country ruled by the elderly.
Samuel Moyn, a Yale University law and history professor who recently authored an article on the subject, said, “I think there’s something special for old people who, once they’ve enjoyed a lot of power, fear irrelevance and neglect if they give it up—you know, they’ll be less important, and they’ll be marginal.” “I believe that there is a gerontocratic crisis in all governmental branches, as well as, quite honestly, in a lot of other places.”
According to the NBC News survey, Newman is only one of the 14 judges who are now designated as full-time active case judges and older than Biden.
It just so happens that the three most senior judges now serving serve on the same appeals court. Judges Alan Lourie, 89, and Timothy Dyk, 87, have joined Newman.
Based on data from the Federal Judicial Center, the oldest active district court judge is Judge David Hurd of the Northern District of New York, who turned 87 this year. President Bill Clinton appointed him in 1999, and he just declared his intention to become a senior citizen. He had before broken a promise to step down.
Born in 1938, Judge Nathaniel Gorton of Massachusetts is the second oldest. Republican President George H.W. Bush appointed him in 1992. (The Federal Judicial Center database does not have precise dates; it just lists the year of birth.)
All of the judges said no to requests for interviews.
Many elderly judges have assumed senior status and are continuing serving in their positions. The number of senior judges who are still actively working on cases is unknown to the judiciary, but according to a 2023 court business report, 520 senior judges have staff members assigned to them, suggesting that they are at least partially carrying out their judicial responsibilities.
Because the president gets to choose a considerably younger replacement when these so-called “active” justices announce their retirement, they are the ones under greater scrutiny when it comes to stepping down or refusing to.
The judicial remuneration is not forfeited in the event of leaving active status. Judges may retire or assume senior status, which entitles them to continued compensation after 15 years of service, at the age of 65.
Senior status might truly be “the best of both worlds,” according to legal scholar David Garrow.
He responded, “You can decide how much you want to do or not do.”
Taken aback
Over the years, Newman has considered stepping down, but she has stated that her vast expertise allows her to do much more.
She expressed dissatisfaction at being taken by surprise by coworkers who gave her an ultimatum early in 2023 without trying to be more approachable.
According to Newman, “I still don’t understand why my colleagues decided to handle it this way at this point in my career.”
Chief Judge Kimberly Moore, who oversees the Federal Circuit and has been instrumental in the disciplinary proceedings, has a different account of the events than she does. Moore stated that Newman had a number of health problems that occasionally prevented her from being “able to discharge the duties of an active circuit judge” in a partially redacted court decision dated March 2023. Court employees had other worries with Newman’s behavior, according to Moore’s letter.
Contrary to Newman’s claim, Moore claimed that in early 2023, she was approached directly by a number of judges expressing their worries, one of whom even suggested that she take senior status.
According to Moore, who turned down an invitation for an interview, she didn’t start an inquiry until after those failed.
“I spent around forty-five minutes discussing the issues raised concerning Judge Newman’s mental health and her incapacity to carry out the duties of an active judge during our meeting. Moore noted, “She refused to take senior status into consideration, claiming that she was the only one who cared about the patent system and innovation policy.”
The Newman case stands noteworthy because the debate over whether or not to resign has been so widely publicized and has resulted in judicial actions regarding the Judicial Conduct and Disability Act of 1980. It permits the filing of a complaint against a judge who is allegedly unable to perform their responsibilities due to a physical or mental impairment. A judge who is qualified for retirement may be removed from active duty by law via a drawn-out procedure that may involve appeals.
The sensitive subject of whether a judge ought to retire or assume senior status is typically discussed only in private, with other judges gently pressuring the concerned party or perhaps enlisting the help of family members.
All of the judiciary’s courts, which have some degree of autonomy, have attempted to resolve the matter to avoid the need for more formal procedures. Judges sitting on the 9th U.S. Circuit Court of Appeals in San Francisco, for instance, can contact a confidential hotline if they have concerns about one another.
The 9th Circuit’s wellness committee, which is led by Hamilton, a judge from Northern California who attained senior status in 2021, is in charge of several programs, such as training sessions, designed to assist judges who are worried about cognitive deterioration. She stated that judges are urged to make plans in advance.
She said, “We believe it is each judge’s independent duty to ensure they are performing to the highest standard possible.”
Politics also plays a role in determining the retirement dates of judges, because many plan their retirements to align their successor with the party of the president who appointed them.
While Supreme Court nominations and the timing of openings have always drawn attention, since Trump prioritized it, examination of a president’s track record of selecting justices for lower courts has intensified.
Biden has done the same. He has nominated 202 district and appeals court judges, emphasizing diversity, with six months left in his term. Trump made 228 appointments during his one time in office.
Republican appointees make up 78 of the 104 current judges who are eligible to step down, according to the statistics, suggesting that some of them may be holding out for a future Republican president.
“Very haphazard”
Legal circles acknowledge that there are shortcomings in the existing system, which has prompted some requests for more substantial revisions.
The procedure is “fairly haphazard,” according to Jennifer Ahearn, a lawyer with the Brennan Center for Justice at New York University School of Law, who also hinted that the judiciary itself could probably do more.
“It is possible for the judiciary to decide that it needs to improve in this area and that a more structured system would be appropriate,” the speaker stated.
Although some argue that term limits on the Supreme Court would be unconstitutional, Ahearn’s group supports Biden’s recent demand for them and mentioned that the change may be extended to the judiciary as a whole.
A proposal to mandate cognitive testing for judges older than 70 has been put up, among other measures. Roth of Fix the Court also pointed out that legislation to expand the number of judgeships would relieve some of the strain on certain older judges, whose labor the judiciary now depends upon in specific districts that are having difficulty handling more cases. At least temporarily.
Recently, the Senate approved a bipartisan plan that will create 66 additional judgeships; the House may support it as well.
“Adding more judgeships to the areas of the country that most need new judges would be the easiest way to mitigate that,” Roth said.
