Age isn’t just a number when it comes to mandatory judicial retirement

By Attorney Gregg Herman
June 21, 2023

mandatory judicial retirement

The judge is the most important role in having a fair and efficient legal system. Properly performed, it requires intelligence, compassion, savvy and patience. All of those attributes may (or may not) deteriorate with age. So, should there be a mandatory retirement age for judges, like there is for airline pilots?

The issue is highlighted most recently by the case of 95-year-old Judge Pauline Newman, the oldest active federal judge in the nation. She is famous (infamous?) for having written more than 300 dissenting opinions in her career, which might be an indication of her personality. Recently, the chief judge of the U.S. Court of Appeals suggested that Judge Newman consider retirement. The court is no longer assigning Newman new cases. She claims that she has been stripped of her assistant, a law clerk and an office computer. Some of Newman’s fellow judges in court orders have accused her of “paranoid” and “bizarre” behavior. Newman says she’s fine and it’s her colleagues who have lost their minds.

Her response was to sue her colleagues, accusing them of violating the Constitution, which does not have a mandatory retirement age for lifetime appointees. I’m not sure of the basis for the lawsuit as to my knowledge, none of the comments or actions are actionable.

Although our Supreme Court judges are not lifetime, a somewhat similar episode occurred in Wisconsin a few years ago. Judge Shirley Abrahamson, a highly respected jurist, sued her colleagues for removing her as chief justice. Of course she lost, but the incident was not a positive note on which to end a long, distinguished career.

The concept of serving beyond one’s “use by” date is not limited to judges. While a few athletes, Barry Sanders and Jim Brown come to mind, retiring at the top of their game, it was painful to watch others still playing when they were a shadow of their past. Bart Starr, Warren Spahn and yes, Hank Aaron, are examples. And I’m thinking Aaron Rogers as well.

“Use by dates” are not limited to physical or mental performance. Judge Ruth Bader Ginsburg, the hero of many in the choice movement, may properly be considered the figurative author of the Dodds decision reversing Roe v. Wade due to her refusal to retire when President Barack Obama could have appointed her replacement. And that was while suffering from more than one type of cancer.

What gives? Well, for one thing it’s difficult to recognize one’s mental infirmity due to the infirmity itself. To accept that you are beyond your prime is even more difficult. Mental infirmities can be quite mild and natural in the aging process. There is a saying that one is not losing mental acuity when you can’t find your keys; it’s when you have your keys but don’t know what they are to be used for when you have a problem. But it’s not always that simple.

Since dealing with this issue on a subjective basis is, at best, quite difficult, the objective test of a “use by” date would be easier and fair. Choosing such a date would be the difficult part. My suggestion would be to take my age and add one – on a continuing basis.

Attorney Gregg Herman is a founding partner of Loeb & Herman, LLC in Milwaukee, WI. He practices family law exclusively, and can be reached via e-mail or by calling (414) 272-5632.