Problem is, even if we agreed in principle to a mandatory retirement age, the party not in power would not want hand over those vacancies to the sitting president. The article points out that over a tenth of Federal judges are over 80. If presumably they're half D, half R, and they would all be forced to retire, then the current administration would get a free pass to replace a large cohort of politically mixed old judges with a homogeneous slate of young D judges. And it would be a one-shot imbalance, because in the future, judges would age out gradually instead of 10% all at once. So it's unlikely R's would agree to it, nor would D's agree when R's are the ones in power.
The only way I could see it being politically palatable is if current judges over 80 are allowed to remain, but any judges turning 80 as of a certain future date are made to retire. So, for instance, if the law went into effect today it could declare that any judge born in the year 1950 or later and turning 80 as of Jan 1, 2030 or later would have to retire.
Rather than a retirement age, you could just appoint a judge for a fixed tenure. How long that is could be based on the current age of the appointee, or could be less to best avoid clusters of appointments. Tenure of course needs to be long, probably with a minimum in decades to cover multiple election cycles.
Indeed. This is also more future-proof. If people live longer and retire at say 120, do we really want judges to sit there for 80 years without a chance to re-evaluate them?
Even better, set the retirement age to 100 in 2023, and every year after that drop the age by 1 until 2043 when it reaches 80. It'll take a little while, but you'll implement your rule without major disruption, as each year 2 years worth of judges retire.
> then the current administration would get a free pass to replace a large cohort of politically mixed old judges with a homogeneous slate of young D judges. And it would be a one-shot imbalance, because in the future, judges would age out gradually instead of 10% all at once.
Allow me to point out how absurd this objection is in the context of the last decade and a half or so.
Party A publicly declares that as a matter of policy, they will proudly and purposefully go to any length to prevent nominations by the presidency, held by Party B, for eight years.
Party A secures the presidency (with the lowest popular vote count in history) and proceeds to stuff the federal judiciary with nearly two hundred and fifty appointments, many of whom are widely criticized by numerous groups including the American Bar Association as being wildly unqualified and in the few short years since have handily confirmed this with comically bad rulings.
In a severe backlash by the American public, Party B returns to the white house and secures substantial congressional control
It is pointed out that we have a small number of judges who are senile and that they should probably be forcibly retired
...and that is "unfair" because Party B would get the "one shot" opportunity to replace a handful of judges...
...after party A replaced two hundred and fifty in four years?
Just to be clear, I absolutely agree with you. But what's best for the nation is severely circumscribed by what's politically possible. As Lord Acton put it, "Everybody likes to get as much power as circumstances allow, and nobody will vote for a self-denying ordinance."
I think this is more of a simplification than a true political affiliation. Judges have conservative and liberal leaning tendencies in their interpretation of the law -- they are supposed to provide an interpretation of the law and naturally that will land on one end of the political spectrum. Personal bias creeps into many rulings and is especially common at the lowest level courts (where checks are limited and visibility is low).
Conservative judges can greatly limit progress on a number of hot button issues that matter to Republicans and similarly, liberal judges can push the interpretation of laws which might not be desired by the other side. Even at the Supreme Court level you can see the conflict play out.
Another possibility is that all new judges have limited appointment. It would be several presidential terms before this had any effect, and be staggered over multiple presidents.
While this could be solved by judges choosing to retire early while under a 'friendly' administration, recent experience tells us this is not going to happen every time.
Judges are always 'partisan', meaning that they are influenced by some or other ideology, policy choices, theories. As long as a certain segment of population finds their judgments reasonable, that's fine. What is reasonable to one set of people, may not be reasonable to another set of people. The issue is not about truth or falsity, but one of reasonableness.
> If presumably they're half D, half R, and they would all be forced to retire, then the current administration would get a free pass to replace a large cohort of politically mixed old judges with a homogeneous slate of young D judges
Not bad compensation for the enormous cohort of R judges appointed during the Trump administration.
Perhaps a better way to handle things would be to ensure that the number of judges is balanced. For example, the law could require the ratios of federal judges to match the ratio of the popular vote in the most recent election. Or new administrations could be allowed to appoint new judges.
Otherwise we still have the problems of judicial rulings primarily depending on what administration happens to be in power when it is time to replace a judge.
One's official political affiliation is easily changed.
What do you do about independents?
What about third parties? Is there a minimum threshold for party size? That is, if party X has 10,000 members, must an X judge be appointed? What about 1,000 members? 10 members?
Certainly it's not a perfect system, but I think a lot of these questions could be addressed.
Party affiliation could be determined by the percentage of the popular vote a party receives in the presidential election (or there could be a separate question on the ballot for what party you want to appoint judges on your behalf). So party affiliation or independent status wouldn't matter, just who an individual votes for. That wouldn't be perfect, for example I generally vote for one of the major parties even though they don't actually represent my views that well; however, it would still provide at least some balance of power that is currently lacking.
I'd envision third parties being handled in the same way that countries with proportionate representation do. As I understand it, a party gets a proportion of the seats equal to it's votes and small parties can band together so that collectively they have enough votes to get a seat.
> So party affiliation or independent status wouldn't matter, just who an individual votes for.
I take it you don't think an independent will ever win the presidential election. You're almost certainly right, but that would be a flaw with this system.
If extended to state judges and the governorship, it would have been a problem for Alaska in 2014–2018, when Bill Walker was governor.
> That wouldn't be perfect
Here's a big flaw - it requires judges to have a party affiliation.
https://worldpopulationreview.com/state-rankings/registered-... says there are about 38.8 registered Republicans and 49 million registered Democrats and over 210 million registered voters. If those numbers are right, most of the voting population is not registered with a party, even though most of the population votes for one of two parties.
But in a system which requires judicial party membership to reflect voting preference, you end up forcing judges to join a party, just to have a job.
Right now a lot of judges are "non-partisan". Of the recent state Supreme Court elections, "61 are held by nonpartisan justices", "14 are held by Republican justices, "five are held by Democratic justices" - https://ballotpedia.org/State_supreme_court_elections,_2024 (Though I think that means the race was not partisan, not necessarily the judge wasn't a party member?)
Still, you can see AZ Supreme Court - https://ballotpedia.org/Ann_Timmer who is listed as nonpartisan and with "Partisan Confidence Score: Indeterminate".
This leads to problem #2: since there appear to be a lot of judges with no registered party membership - far more than the percentage of non-D/non-R votes - how do you determine if the current judicial distribution is skewed? Will you only select party-affiliated judges until the numbers balance the election results?
Yes, I think it's virtually impossible for someone with no party affiliation at all to win. Running a national campaign would pretty much require some party organization even if it's a third party. That being said, if they were an independent then I guess they are effectively a party of one and can just pick their own judges?
Similar to with the voters, I don't really care what party a judge says (or doesn't say) they are a member of. My concern is who appoints them. So I would consider a situation where a disproportionate number of judges have been appointed by one party to be skewed.
> So I would consider a situation where a disproportionate number of judges have been appointed by one party to be skewed.
My observations concern your earlier statement "the law could require the ratios of federal judges to match the ratio of the popular vote in the most recent election". I said that had problems. The new criteria of "disproportionate number" is too subjective to provide meaningful policy.
After Lincoln was elected, and the then-new Republican Party got 39.8% of the vote, you would have let the new President replace a substantial number of existing judges?
You'll need to be careful as "party" is a bit tricky when you get to the details. If I'm a member of a state party, am I also a member of the national party?
Consider the Minnesota Democratic-Farmer-Labor Party, created in 1944. It is NOT the US Democratic Party, but like all state Democratic parties it is affiliated with the US Democratic Party. Would party membership have changed due to the merger? Where once there were Farmer-Labor and Democratic Party judges, would some of them need to be kicked out because in 1945 they were the same party?
This could lead to all sorts of interesting ways to game the system, like a state with three Democratic Party-affiliated state parties, and bylaws that allow membership in multiple (affiliated) parties at the same time.
Or as another hack, legally abolish the party every few years and create a new one (X Party 2028, X Party 2032, etc), and allow automatic transfer of members into the new party. Poof - now every re-election the administration gets to change out any judge, because none of the existing judges were appointed by the President of X Party 2036.
I don't understand what you are getting at with the scenarios you are presenting. Even if a party abolished and re-established itself after each election, they would still only be able to appoint a portion of the judges equal to the portion of the vote they received.
Similarly, having multiple affiliated parties wouldn't provide any benefit because voters would still ultimately have to split their votes between them. The proportion of the vote that the affiliated parties is unchanged.
I'm not particularly concerned with how many of the judges are replaced after each election; as long as the end result is that the judges reflect the political makeup of the country. Even replacing all of the judges every election would be better than the current situation where Republican judges could control the Supreme Court for decades due to lifetime appointments.
If we didn't grant lifetime tenure to judges, they would live in perpetual fear of retaliation from ruling against a powerful or well-connected defendant.
C.F. also university professors or school teachers who also get similar, tho more limited tenure.
Not saying there are no edge cases where the policy can be problematic, but when you are standing in judgement over people, its a lot easier to be impartial and a lot easier to reject bribes when you have that kind of security.
We could just appoint them until a given age, let's say 70 for example, and then guarantee lifetime benefits after that but they no longer serve.
It has all the same benefits of a lifetime tenure, they don't need to worry about retaliation, they wouldn't be _more_ likely to accept bribes since they will still have income and benefits for their retirement, etc.
Well, unless the person strongly values the contribution to society that being a judge represents. If there's another career they could go into and still practice into their 90s, maybe they'd prefer that.
This has a simple solution used in other countries - Lifetime appointments with mandatory retirement ages. The UK as one example requires much of the judiciary to retire by 70.
A lot of jobs used to have mandatory retirement at 65. Past 75 or 80 there is a clear decline in cognition for most everyone. There also used to be norms about these sorts of things. People don’t like to follow norms anymore so perhaps we should make a rule.
> Shen’s proposed solution: a judicial health-assessment program that would collect cognitive data when a judge is nominated and in follow-ups every five years. The results of that testing would remain private and confidential, according to Shen.
I’d love if all elected officials were mandated to disclose all the medications they are taking. At least let us know who in Congress is taking Alzheimer’s medication.
That creates a perverse incentive to not take medication. I.e. we'd end up where we are now, but with unmedicated people.
I do think psychiatric evaluations make sense, especially for judges. They can really mess someone's life up, and theoretically the judgement would be overturned on appeal, but that's little solace to someone that spent 6 months in jail while the appeal happened.
One problem with this strategy is that such evaluations are relatively subjective. Like everything else in government, the process would become stacked with politically motivated individuals that have an agenda, and the judiciary would ultimately be biased according to their whims.
Oh definitely. My offhand idea would be to do a sort of jury selection. Pick 20 random psychiatrists from the AMA roster, let each side remove 5, and have the remaining 10 submit evaluations. I think if a majority (so 6) find them incompetent to be a judge, there should be some form of citizens voting on whether to keep them or not. Not state legislators, but actual citizens.
Wouldn't that likely result in there being no neurodivergent judges? It would undermine the whole idea of "trial by peers" if neurodivergent people are being tried purely by neurotypical people.
I mean, 70+ years old judges don't represent or reflect people between ages of 20-30 either, but appointing people of that age to be judges isn't the solution. And that's ok. There are no judges representing people with borderline personality disorder, and I don't think this is a problem in need of a solution either. That's what the jury is for.
The problem with competency tests, they would inevitably get abused by political parties, also would a defendant just be able to demand a competency test just because the judge looks elderly?
I internally debate it but I always seem to come back to the thought that if you can collect social security you shouldn't be allowed to hold public office.
I recall talking with a 70 year old physicist who was the last professor forced out by mandatory retirement. He was a great teacher and incredibly bitter about this. I work with a number of 75+ programmers- it is hard to get this right, and, outside of judges who are protected constitutionally, you run into huge labor law problems
I mean, we're the ones voting for these people. Also, this is like one judge in the whole country, and apparently from this article the last time this happened was in 1975. I don't think we need to create new regulations for every little rare problem. Things can be dealt with on a case by case basis sometimes.
Who are "we"? Where's the young citizen who had a say on who should be judge? Where's the young citizen who voted for the Federal Reserve chairman or the ECB president?
> Where's the young citizen who had a say on who should be judge?
Presumably voting in house and senate races in November for the candidates whom they trust to vote for the next Federal Reserve chairman on their behalf (in a way that reflects their concerns and wishes).
Often we don't have a choice; even if party support wasn't mandatory, there are young, newly elected congressional representatives who are struggling to support their families because congress never once considered that one of them might not be independently wealthy.
In the 80s, the Soviet Union was criticized for being a gerontocracy. Brezhnev came to power in his 50s, and died in charge at 75. He was replaced by Andropov, 67. Then came Chernenko, 72. They had worse medicine than we have today, but they would all be spring chickens compared to our recent presidential candidates. The median US senator is 65. Chuck Grassley is 89, and has held his seat since 1981. Diane Feinstein is also 89.
And the picture in the Supreme Court isn't much better, even though there are big advantages in nominating young judges, which can hold on to their seats for many decades.
So is the US a gerontocracy? It's not much of question.
If I recall correctly the follow-on to that interesting episode in Soviet history was Gorbachev. Who more or less brought about the end of the Soviet Union.
Trump, Bush, and Clinton were all born in 1946 (ie pure baby boomers). But Clinton was a much younger president than Bush, who was a much younger president than Trump.
The only way I could see it being politically palatable is if current judges over 80 are allowed to remain, but any judges turning 80 as of a certain future date are made to retire. So, for instance, if the law went into effect today it could declare that any judge born in the year 1950 or later and turning 80 as of Jan 1, 2030 or later would have to retire.