Fox News: Aging Judges Still on Bench

Aging Judges Still on the Bench

Fox News, Washington, D.C. by Tisha Thomspon - March 19, 2009

WASHINGTON, D.C. - When you think about powerful people, who comes to mind? Congress? Obama? How about Federal judges? Retired pilot Joe Norman didn’t know much about Federal judges until he became entangled in a lawsuit. The judge, William Hoeveler, has presided over high-profile cases like the Elian Gonzalez trial. But Norman has filed court documents claiming the judge made mistakes in his case and blames Hoeveler’s age. The judge had a well-publicized stroke during the Gonzalez case and is 86 years old. “Whether we like it or not,” Norman says, “people decline with age and I think Hoeveler should have to retire. The United States Constitution says Federal judges “shall hold their offices during good behavior” and never have to retire. But, when the founding fathers wrote the Constitution, Supreme Court justices rarely lived past their fifties, according to a recent Northwestern University study. That’s not the case today. When Fox 5 added up the ages of today’s Federal judges, we found more than 1/3 are 70 or older. That’s the same age at which most states force their judges to retire, including Maryland and Virginia.

"You want people who have physical and mental acumen," says Sheila Sachs. She chairs the committee that nominates Maryland’s judges. Sachs says mandatory retirement also encourages diversity. "You're not going to have an opportunity to get greater diversity on the bench unless you have more senior people move out and younger people come in." Our investigation found Federal courts are dominated by white men, with minorities making up 15% of the bench. “There's plenty of examples of judges serving in their seventies and eighties and they are doing a great job," says Russell Wheeler of the Brookings Institution. Wheeler says judges need to have life tenure so they can make the tough decisions without fear of retribution or being yanked off the bench. Wheeler says, "if you were to say to all Federal judges, 'at age 70 the President has the right to remove you from office,' that's a host of trouble."

Wheeler says Congress created something called “Senior Status,” which allows judges to keep their salary as they get old while hearing fewer cases if they want. But some Senior Status judges, like U.S. District Court Judge Wesley E. Brown in Wichita, KS, continue to hear a full case load even though he’s almost 102 years old. Brown did a rare interview with KAKE-TV just before his 100th birthday. In that interview, he said, "I really don't want to be known as a judge at 99. I want to be known as a judge who does his job and does the best that he's able under the circumstances of his life." The Federal government says Senior Status judges hear nearly one out of every five cases. Some say Judge Brown is an example of why age shouldn’t matter. 88 year-old Supreme Court Justice John Paul Stevens is another.

Duke University Professor Paul Carrington says, "Justice Stevens is a very fine justice who is still doing a great job, but if the price of that is having everybody hang around for 30 years, there's not enough rotation in the institution and it is ossifying." Carrington is 77 years old himself and says Supreme Court justices in particular tend to hang on to their jobs too long. He says, it’s “too much fun, too much power. And they're not going to quit just because they're 75 and a little dotty. That's not a good enough reason." Chief Justice William Rehnquist spent 33 years on the Supreme Court. After he died in 2005, the FBI released his file, which showed Rehnquist had been addicted to painkillers for at least a decade. The file quotes a doctor who says Rehnquist had “bizarre ideas and outrageous thoughts” and believed there was “a CIA plot against him.” The only way to remove a Federal judge is impeachment. But Fox 5 found only 11 have ever been forced out of office. Just one for “mental instability” – in 1804.

Carrington and 33 other legal experts are now proposing major reforms. That might require changing the Constitution, or at least an act of Congress. But even Carrington thinks that is unlikely. “There is the reality that justices and judges have a lot of friends in high places and they like things the way they are, so who wants to take them on?" All of the Federal judges Fox 5 contacted for this story, including Judge Hoeveler, declined to comment. Joe Norman did file a complaint against Hoeveler but suspects it won’t go very far. “We’ve got a major problem and nobody but nobody wants to open Pandora’s box,” he says. “And I contend the state of the Federal judiciary is America’s Pandora’s box.”

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