Mimesis Law
28 February 2020

Judge Kopf: Without Senior Judges, System Would Collapse

Feb. 11, 2016 (Mimesis Law) — Certain academics and others rail against old federal judges. These commentators see a real problem with aged federal judges. In my opinion, they vastly overstate the problem or they have barely hidden political agendas. Still further, there is an easy but informal cure to this supposed problem.

But before we begin to address the supposed problem and possible solutions, let us take a step back. Senior judges don’t have to work at all to draw the same pay they received when electing senior status. See 28 U.S. Code § 371

Under the foregoing statute, a judge can become a senior status judge when his or her age plus years of service equal or exceed 80, but that status cannot be chosen until the judge is at least 65 years of age (65 years of age plus 15 years of service=80). After 65, the years of required service decrease as a judge’s age increases. (Example: 70 years of age plus 10 years of service=80.)

Upon achieving senior status, the judge receives an annuity equal to the pay of an active district judge at the time the judge took senior status. If the judge does an amount of work equal to that required by each Circuit’s judicial council, the judge can also receive pay raises and a staff.

It is an irrefutable fact that the federal judiciary would fall apart without senior judges. According to an informal inquiry I made to the Administrative Office (AO), at the end of Fiscal Year 2015, the judiciary had approximately 450 senior Article III district judges and about 100 senior Article III circuit judges. According to the AO:

Senior judges, who essentially provide volunteer service to the courts, typically handle about 15 percent of the federal courts’ workload annually.

AO Frequently Asked Questions (FAQs) (“What is a senior judge?”)

In fact, there are times when the number is much higher. In 2009, for example, district judges on senior status accounted for 21.2 percent of case terminations and 26.8 percent of all trials. Judge Royal Furgeson, Senior Judges of the Federal Courts, Their Choices and the Consequences, 76 Tex. B.J. 119 (February 2013). In other words, during this time, senior judges were handling more than a quarter of all federal trials.

You would need many more judgeships approved by Congress to take up the slack if senior judges did not volunteer their services. For example, one recent study found that “147 district court judgeships and 23 appellate judgeships would have to be created if there were no senior judges.” See Debra Cassens Weiss’ ABA Journal article here (citing the empirical scholarship of University of Pennsylvania law professor Stephen Burbank and Judge S. Jay Plager of the U.S. Court of Appeals for the Federal Circuit).

With the foregoing context, we can now examine the problem. Take, for example, this account in Slate:

Judge Richard Owen* of the U.S. District Court in Manhattan gathered a group of lawyers in his courtroom in 2007 to discuss the possible leak of sealed documents in a business case. As the hearing got under way, Owen, then 84, asked for someone to explain this newfangled mode of communication the lawyers kept mentioning—e-mail. “It pops up in a machine in some administrative office, and is somebody there with a duty to take it around and give it to whoever it’s named to?” he asked.

Some of the lawyers figured that Owen, whose chambers came with a mimeograph machine when he became a judge in 1973, was just behind the times. Others wondered if the judge’s memory was failing him. After all, the most famous case in his long career—the back-to-back trials of Silicon Valley investment banker Frank Quattrone—had revolved around a single e-mail. Yet he now acted as though this was the first he was hearing about it. “He didn’t understand what was happening in his own courtroom,” said one lawyer present that day.

Owen’s memory lapses popped up at critical moments. A month after his e-mail query, the judge stumbled badly when handing down a life sentence to drug dealer Darryl Henderson for his connection to a robbery crew that murdered three people in a Bronx apartment. The prosecutor had previously called Henderson “the key into that apartment,” because Henderson was sleeping with the apartment’s female tenant and conceivably helped the murderers get past the front door. In Judge Owen’s mind, the metaphorical key became a literal key. He announced that the tenant had given Henderson “a key to get into that apartment,” and seemed unperturbed when the prosecutor explained there was no such evidence.

Then Owen expressed confusion over the relatively limited counts the jury had found Henderson guilty of and grew exasperated when the defense and prosecution tried to set him straight. Lawyers questioned whether Owen’s mind was working well enough to be deciding matters of life and liberty. “Do I think age was a factor in some of his cloudy thinking? Yes,” said David Patton, a defense attorney for Henderson. “There were many times when he seemed confused and exhausted.” Owen declined repeated interview requests.

Joseph Goldstein, The Oldest Bench Ever, Extreme aging in the federal judiciary—and the trouble it causes, Slate (January 18, 2011) (this article was originally written for ProPublica).

Consider a more recent op-ed piece that has garnered a lot of national attention. While apparently not a lawyer, David Garrow is a “Research Professor of History and Law” at the University of Pittsburgh School of Law. He too is very worried that federal judges are too old and something should be done about it. See David Garrow, Four Supreme Court Justices are older than 75. Is that a problem? Los Angeles Times (February 2, 2016).

Garrow is not only concerned about the Supreme Court. He writes about judges on the federal courts of appeal and the district courts:

The problem of an aging judiciary extends beyond the Supreme Court to the hundreds of elderly federal judges across the country. The average age of these jurists is now over 70, with many in their 80s and 90s. The 94 U.S. district courts and 13 courts of appeals decide more than 98% of all cases with federal jurisdiction, so the continued mental acuity of these jurists should be a concern for all of us who use interstate commerce or expect due process.**

Id.

Garrow proposes various ways of getting at the problem of cognitive decline in old judges like me. Some of what he suggests is merely his policy preference for abolishing life tenure.

For example, he believes a federal judicial retirement age of 70 or 75 should be adopted and judges should limit themselves to serving 18 years. While the purpose of this post is not to get into a debate about age and term limits for federal judges, I note that such a proposal would have deprived our country of the full services of the greatest of all federal judges, Chief Justice John Marshall. He died at 79 having served as Chief Justice for over 34 years.

More reasonably, Garrow suggests that it would be wise for older judges to submit to cognitive testing. He writes,

If there’s a silver lining, no pun intended, it’s that some of these jurisdictions have implemented programs to promote sharpness in judges as they age. The 9th Circuit Court of Appeals, for instance, offers a battery of mental health assessments, hosts discussions with neurological experts and has created a hotline where staff may report signs of cognitive decline in their colleagues. Such measures are necessary because it’s hard for friends and family members, let alone the individual in question, to know if a tendency to, say, forget one’s keys is innocuous, or portentous.

Id.

Now, let me give you my opinion on the senility concern. I do not believe there is a need for a formalized “one size fits all” approach to addressing the problem of a federal senior judge suffering severe cognitive decline. There are sufficient informal controls already in place in most federal courts to obviate the need for a mandatory regime.*** Furthermore, it is a bit much to demand that senior judges, who volunteer their time after all, to submit to forced mental health testing based solely on age and without more. So, I strongly oppose any mandatory screening requirement based solely on age.

However, I do think it wise for senior judges to voluntarily submit to cognitive testing on their own after they reach a certain age. See, e.g., Prawfsblawg, Judges Should Volunteer for Cognitive Testing (June 15, 2015). Indeed, as the Slate article cited above indicates, perhaps the greatest living federal trial judge, Judge Jack B. Weinstein, of the Eastern District of New York, voluntarily gets an annual neurological checkup, including a CAT scan. The judge was born in 1921. You do the math.

Judge Weinstein by Antony Hare

So, if I am still a judge at 75, I will voluntary undergo cognitive testing at that time and every so often thereafter.**** I will share the results with all of my Article III colleagues in the District of Nebraska. Ultimately, I realize, and fully appreciate, that the decision about whether I will have work to do as a senior judge is up to the determination of the Chief Circuit Judge and the Chief District Judge that I am “able” to do the work. See 28 U.S. Code § 294(c) (last sentence). See also 28 U.S. Code § 137 (second sentence). As (hopefully) a good colleague, I would not make them guess about whether I am any wackier at 75 than I was at 45 when I was first appointed.

In short, voluntary cognitive testing for senior judges makes sense. As one ages, the old saw that “I don’t know what I don’t know” is never truer. Senior district judges ought to exercise their independent judgment and set in motion beforehand a program for themselves involving voluntary cognitive testing.

OK, I will quit. (Long pause.) Wait a minute please!

Damn. Where the hell are my keys?

Richard G. Kopf
Senior United States District Judge (Nebraska)

*The well-educated and experienced judge died on November 20, 2015. I would not have used his name if that were not so. Perhaps I am the only one, but I am fascinated by the fact that in his spare time the judge composed operas. His sixth, “Abigail Adams,” was based on the writings of John, Abigail and John Quincy Adams, and depicts the strains of domestic and international life. The Federal Bar Association and the Second Circuit Court of Appeals Bicentennial Committee co-sponsored three benefit performances of the opera in honor of the Constitution’s bicentennial.

**Garrow does not cite sources in his op-ed piece. In 2010, the median age of the 163 active judges on the Courts of Appeal was 62 and the median age of the 632 active judges on the District Courts was 60.  Lee Epstein, ‎William M Landes, ‎ and Richard A Posner, The Behavior of Federal Judges, pp. 338-339  (2013). It is only by adding the ages of senior judges that I suspect Garrow was able to come up with his higher age numbers.

***Even large federal courts are small enough that when a colleague appears to be slipping, the chief judge will normally become aware of it, step in and handle the problem informally. Moreover, many senior judges have their own informal methods of making sure that if a problem arises it will not be ignored. For example, both of my career law clerks have been instructed to contact our Chief Judge, without telling me, if they perceive any serious indication of senility or the like. I have no doubt that Jan (who is in her fifties) and Jim (who is in sixties) will have the fortitude to do what I have instructed them to do if that time should ever come.

****The numbers about the prevalence of dementia at various ages are all over the map. Be wary of statistics on this subject. The following source is a fairly conservative estimate regarding “severe dementia.” Thus, according to a text book on neurology, the prevalence of severe “dementia rises from approximately 3% at ages 65 to 74 years to 18.7% at ages 75 to 84 years and to 47% of those older than 85 years.” Umphred’s Neurological Rehabilitation, page 838 (Sixth Edition, 2013) (Section II, Chap. 27, “Epidemiology”). It should be remembered that full-blown dementia (severe cognitive impairment) has more than 70 causes. Id. Moreover, sever cognitive deficits are by no means limited to Alzheimer’s disease. Even so, if you look at men (regardless of their health or education), the current estimated lifetime risk of developing Alzheimer’s is 9% at age 65, 10% at age 75, and 12% at 85 according to the Alzheimer’s Association. 2015 Alzheimer’s Disease Facts and Figures, at p. 21 and figure 3 (PDF). Oddly, the estimated risk for women is higher, although this is likely a function of women living longer than men.

16 Comments on this post.

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  • LawDog
    11 February 2016 at 11:49 am - Reply

    For your entertainment, here’s a great piece by George Carlin: “You Have No Rights!” https://www.youtube.com/watch?v=hWiBt-pqp0E The best part is at about seven minutes, where he takes on the Korematsu case. Justice Jackson had it right in a thoughtful dissent.

    There is a difference between a senior judge and a senile one, and too many hold on well into their dotage. When you get one of those, your case is largely decided by inexperienced law clerks. At a certain point, the judge becomes so feeble that it violates your right to due process, and there is no effective way to weed out those who should have retired in 2010. At the circuit level, other judges try to shelter litigants from the unfit judge, but even they have no power short of persuasion.

    On balance, we could probably do without senior judges or at least, initiate a hard retirement age of 70 like most states. Once you get to 75, mental decline is a real problem, Justice Scalia. All we’d have to do is hire new judges. No problem.

  • Richard G. Kopf
    11 February 2016 at 12:38 pm - Reply

    LawDog,

    We have been waiting to fill our third active district judge spot since Judge Bataillon announced in 2014 that he would take senior status the following year. The nominee, who is a Republican, is well-qualified by the ABA and has the active support of our two GOP Senators and everyone across the broad spectrum of the bar in Nebraska. He is a member of the American College of Trial Lawyers, the American College of Employment Lawyers, on the law review when he was a student, clerked for a federal trial judge, and was about to become President of the Nebraska Bar Association. He has been skipped over at least twice for a hearing before the Senate Judiciary Committee for no reason at all–nobody claims he has any political or other opposition. So we and he wait.

    So, sure. Put all the senior district judges out to pasture. Congress will fix the problem promptly by adding 140 plus new seats and judges.

    By the way, do you smoke weed?

    All the best.

    RGK

    • Roger
      12 February 2016 at 1:04 pm - Reply

      Love the sarcasm.

  • Richard G. Kopf
    11 February 2016 at 1:31 pm - Reply

    To all,

    I failed to note that Gregory Ablavsky, a law professor Stanford Law School, was a coauthor of the study mentioned in Debra Cassens Weiss’ ABA Journal article discussed in the text. I apologize to the professor for this omission.

    All the best.

    RGK

  • LawDog
    11 February 2016 at 2:51 pm - Reply

    Judge Kopf: “We have been waiting to fill our third active district judge spot since Judge Bataillon announced in 2014 that he would take senior status the following year. … He has been skipped over at least twice for a hearing before the Senate Judiciary Committee for no reason at all–nobody claims he has any political or other opposition.”

    With all respect, Your Honor, that is mostly the fault of the Judiciary.

    “The courts can exercise only the judicial power, can apply only law, and must abide by the Constitution, or they cease to be civil courts….” Justice Robert Jackson, in Korematsu. The problem is that almost no one believes that we have courts any more. This poll is staggering:

    “A CBS News/New York Times Poll conducted from June 10-14, 2015 asked 1,007 adults nationwide:

    “In general, do you think the current Supreme Court justices decide their cases based on legal analysis without regard to their own personal or political views, or do you think they sometimes let their own personal or political views influence their decisions?

    75 percent responded: “personal, political views”

    16 percent responded: “just legal analysis.”

    http://barbwire.com/2016/02/10/50149/ If you polled practicing attorneys, it would be at least 90/10.

    If judges simply applied the law to the facts as they were supposed to, no one would care whether the candidate was a Republican, Democrat, or Communist. But they don’t, and almost no one believes that judges will protect their rights under law any more.

    The system HAS failed, and I am at a loss as to what to do about it.

    • Richard G. Kopf
      11 February 2016 at 4:05 pm - Reply

      LawDog,

      I agree in part.

      But the People share much of the blame too. Both sides of the political spectrum now turn to the federal courts to resolve problems that exist but are not resolved as they should be by a Congress that is functional. If the People keep electing extremists from both sides, then there will continue to be a hydraulic pressure to seek a method of resolving otherwise easily resolvable political disputes–and the courts will remain the relief valve.

      Thanks for the thoughtful comment. I appreciate that you take the time to comment. All the best.

      RGK

  • Dwight Hines
    11 February 2016 at 4:25 pm - Reply

    Dear Judge:

    You didn’t cite Solomon, King Solomon, who ages well along with his decisions. Judge Debra did well also, especially since she had no role models.

    Don’t worry about getting cognitive testing, there’s about several thousand of us will let you know when you need to fish more than write.

    Dwight Hines

    • Richard G. Kopf
      11 February 2016 at 5:03 pm - Reply

      Dwight,

      Our son is a fish biologist (with a fancy Ph.D.) in Australia. I took him fishing when he was 5 or 6 in a small pond in Lexington, Nebraska, and to our surprise, it wasn’t 10 minutes before he caught a nice sized bass on his cane fishing pole. From that day to this one, he has been nuts about fish and fishing. Me not so much.

      So, please, don’t pull the trigger until you are really sure that I am beginning to flop about like a carp out of the water. By the way, carp are pretty good eating if you take out the mud vein, but that’s another story.*

      All the best.

      RGK

      *The “Joe Tess” restaurant in Omaha, NE (http://joetessplace.com/) notes that the “humble carp has been the driving force behind Joe Tess Place.” Yum!

  • losingtrader
    12 February 2016 at 3:22 pm - Reply

    Does shooting rabbits in the backyard count as not being “on good behavior,” or does it just mean the judge is full-blown wacko?

    Do you remember the difference between a bullet and a Bullet flying around the backyard?

    These are just 2 questions for your cognitive impairment test.
    Skip a yearly CT.
    THAT’s nuts.

    • Richard G. Kopf
      12 February 2016 at 4:17 pm - Reply

      Dear Losingtrader,

      In answer to your questions,

      Does shooting rabbits in the backyard count as not being “on good behavior,” or does it just mean the judge is full-blown wacko?

      ANSWER: Just a mere wack job.

      Do you remember the difference between a bullet and a Bullet flying around the backyard?

      ANSWER: Yes, I remember. While both can kill rabbits, only one is worth stealing. The Bullet is the best. Guard B carefully!

      As for annual CT scan, I plan on sending Joan as my proxy.

      All the best.

      RGK

      • shg
        12 February 2016 at 4:39 pm - Reply

        You would subject Joan to a CT scan? That’s ungentlemanly.

        • Richard Kopf
          15 February 2016 at 11:31 am - Reply

          SHG,

          What’s your point?

          All the best.

          RGK

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