The federal courts are full of judges who could retire but won’t. Little can be done about it.

WASHINGTON — At the age of 97, Judge Pauline Newman is the oldest full-time federal judge on the bench, but despite concerns about her ability to do the job, her colleagues are struggling to get rid of her.

For more than a year, she has been locked in a legal battle with her fellow judges on the Washington, D.C.-based U.S. Court of Appeals for the Federal Circuit, who have tried to pressure her to step aside. Newman fought back and is still contesting a decision that bars her from hearing cases.

Appointed by President Ronald Reagan in 1984 to the court that among other things handles appeals in complex patent cases, Newman was sanctioned after she refused to take a neurological test as part of a judicial disability investigation.

“It’s been devastating to me,” Newman said in an interview with NBC News. “It is as if my entire lifetime, a good deal of which has been devoted to this business, is of no meaning.”

When Democrats decided after President Joe Biden’s disastrous debate performance that he was no longer fit to serve at the top of the ticket, a multifaceted pressure campaign was able to convince him to step aside.

But federal judges, as well as Supreme Court justices, have lifetime appointments and there is no easy process for easing them aside.

With people generally living longer, a lifetime appointment can now last many decades. The average age of a federal judge is 69, according to a recent study, and there is no clean way to force someone to step down.

“That’s a feature, not a bug,” said Greg Dolin, a former Newman law clerk who is now working as her lawyer. “There’s no way to get rid of a judge, but I don’t think that’s something to amend. That’s something to celebrate.”

On the other hand, some judges have no wish to stay on the job for life out of fear they may lose their faculties, and courts have put measures in place to assist them.

“The judges are engaged in very challenging work. We have a responsibility 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,” said Judge Phyllis Hamilton, a long-serving federal district judge in Northern California.

Acute problem

Pressure on judges to retire often becomes public only when it concerns a Supreme Court justice. When President Barack Obama was in office, liberal Justice Ruth Bader Ginsburg rebuffed calls from liberals that she step down. At the time, she was in her early 80s and had faced multiple bouts of cancer.

She died in September 2020 at the age of 87, giving then-President Donald Trump the chance to replace her with staunch conservative Justice Amy Coney Barrett, a huge change that shifted the court to its current 6-3 conservative majority.

While the Supreme Court attracts the most attention, “the problem is probably even more acute” on lower courts because of the sheer number of judges, said Gabe Roth, executive director of Fix the Court, a judiciary watchdog.

As of last year, there were 870 active federal judges, including the nine Supreme Court justices and judges serving on the 13 appeals courts and the 94 district courts, according to the Administrative Office of the U.S. Courts.

Of those, 70 district judges and 34 appeals court judges are eligible to take senior status, whereby judges take on a lesser role but maintain their title, or retire on full pay, according to an NBC News analysis of data on judges from the Federal Judicial Center, the research arm of the judiciary.

It is not just in presidential races and the judiciary where advancing age is a factor. The average age of members of Congress has also risen, reaching almost 60 for members of the House of Representatives and 64 for senators, according to the Congressional Research Service. Last year, the focus fell on Sen. Dianne Feinstein, D-Calif., who showed signs of cognitive decline while in office before dying in September at the age of 90.

It has led some to claim that the United States is inching toward becoming a gerontocracy, a society in which elderly people are in charge.

“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,” said Samuel Moyn, a law and history professor at Yale University who recently wrote an article on the issue. “I think there’s a gerontocratic crisis across all branches of government and frankly many other places too.”

In the judiciary, Newman is just one of 14 judges still listed as actively hearing cases on a full-time basis and who are older than Biden, according to the NBC News survey.

By coincidence, all three of the oldest active judges sit on the same appeals court. Joining Newman are Judge Alan Lourie, 89, and Judge Timothy Dyk, 87.

At the district court level, Judge David Hurd of the Northern District of New York, who turned 87 this year, is the oldest active judge, according to the Federal Judicial Center data. He was appointed by President Bill Clinton in 1999 and recently announced plans to take senior status. He had previously rescinded a pledge to step aside.

The second oldest is Massachusetts-based Judge Nathaniel Gorton, born in 1938, who was appointed by Republican President George H.W. Bush in 1992. (The Federal Judicial Center database includes year of birth but not specific dates.)

The judges all declined interview requests.

Hundreds more aging judges are still in office but have taken senior status. The judiciary does not have exact numbers on how many senior judges are still actively working on cases, but a 2023 judicial business report said there are 520 senior judges who have staff assigned to them, indicating that they are conducting at least some judicial duties.

These so-called “active” judges are the ones who get more scrutiny about stepping down, or refusing to do so, because when they announce their retirement, the president gets to pick a much younger replacement.

Leaving active status does not necessitate giving up the judicial salary. Under judiciary rules, any judge can retire or take senior status at age 65, which means they still get paid as long as they have served for 15 years.

In fact, taking senior status can be “the best of both worlds,” noted legal historian David Garrow.

“You can choose how much you want to do or not do,” he said.

Blindsided

Newman has thought about stepping down over the years but said she still has a lot to offer based on her considerable experience.

She complained that colleagues blindsided her by giving her an ultimatum early in 2023 without making any effort to approach her in a more friendly fashion.

“I still can’t understand why my colleagues decided at this stage of my career that this was how they were going to treat it,” Newman said.

Her version of events differs from that of Chief Judge Kimberly Moore, who heads the Federal Circuit and has played a key role in the disciplinary action. In a March 2023 court order that is partly redacted, Moore wrote that Newman had suffered from various health issues that at times had led her to be “unable to discharge the duties of an active circuit judge.” Other concerns were also raised by court staff about Newman’s conduct, Moore wrote.

In early 2023, contrary to Newman’s account, several judges did communicate their concerns directly to her and one urged her to consider taking senior status, Moore wrote.

Moore, who declined an interview request, only pursued an investigation when those efforts failed, she said.

“I met with Judge Newman for approximately 45 minutes where I outlined the concerns about her inability to perform the work of an active judge and the concerns which had been expressed about her mental fitness. She refused to consider senior status saying that she was the only person who cared about the patent system and innovation policy,” Moore wrote.

The Newman case is an outlier because the discussion over whether she should step down has been aired so publicly and has led to legal proceedings involving a 1980 law called the Judicial Conduct and Disability Act. It allows for a complaint to be filed against a judge who is alleged to be incapable of carrying out their duties because of mental or physical disability. The law allows for a judge who is eligible to retire to be removed from active service after a lengthy process, including appeals.

Normally, the delicate question of whether a judge should retire or take senior status is dealt with entirely behind closed doors, with other judges gently nudging the person in question, or even seeking assistance from family members.

Courts, all of which have some autonomy within the judiciary, have sought to address the issue so that more formal proceedings are not necessary. Judges serving in courts under the jurisdiction of the San Francisco-based 9th U.S. Circuit Court of Appeals, for example, can call a confidential helpline for judges with concerns about colleagues.

Hamilton, the Northern California judge who took senior status herself in 2021, chairs the 9th Circuit’s wellness committee that oversees various initiatives to help judges concerned about cognitive decline, including training sessions. Judges, she said, are encouraged to plan ahead.

“We think it’s every judge’s independent responsibility to make sure they’re functioning at the very best they can,” she added.

Politics is also a factor in dictating when judges step aside, as many coordinate their retirements to ensure that the president who replaces them is from the same party as the president who appointed them.

While attention has always been paid to Supreme Court appointments and the timing of vacancies, scrutiny of a president’s success rate in picking lower court judges has increased since Trump made it a priority.

Biden has followed suit. With six months of his presidency to go, he has appointed 202 district and appeals court judges while placing an emphasis on diversity. Trump appointed 228 in his single term in office.

The data shows that 78 of the 104 active judges who could step aside are Republican appointees, raising the possibility that some are likely waiting for another Republican president.

‘Fairly haphazard’

There is recognition within legal circles that the current system is lacking, which has led to some calls for more concrete reforms.

Jennifer Ahearn, a lawyer at the Brennan Center for Justice at New York University School of Law, described the process as “fairly haphazard” and suggested there is likely more the judiciary itself could do.

“You could imagine the judiciary taking into its own hands the idea that it needs to do better at this, and that perhaps having a sort of a more formal system,” she said.

Ahearn’s group backs Biden’s recent call for term limits on the Supreme Court, a proposal that some say would violate the Constitution, and she noted that such a reform could be applied to the judiciary as a whole.

Some further reforms have been suggested, including a proposal that would require judges over 70 to be cognitively tested. Fix the Court’s Roth also noted that legislation to increase the number of judgeships would at least in the short term take the pressure off some elderly judges whose work the judiciary currently relies upon in some districts struggling with larger caseloads.

A bipartisan bill that would add 66 new judgeships recently passed in the Senate and could get similar backing in the House.

“The easiest way to mitigate that would be to create more judgeships in the places in the country that most need new judges,” Roth said.

This post was originally published on this site