This draft is improved by the presence of some data, although in the end, as you say, what you proved was that we continue to appoint as federal judges people with decades of experience in practice, and they live longer, remaining productive on the whole far beyond the working lifetime of most citizens.

Now, the argument has been reduced to dementia. About this, you have no data. That we have no documented difficulty with the incompetence of federal judges, and no specific problem arising from dementia, seems not to deter your presentation. You think that monitoring of judges' mental health doesn't exist, for some reason. You don't discuss how retirement actually happens among federal judges, how senior status works, how assignment committees in the judicial districts function. You don't know about the fact that lifetime wages is one part of the judicial deal, and no survivor's pension to spouses is another, thus making senior status (which results in the appointment of a replacement full-time judge) the real arrangement you think doesn't exist and need to cast aspersions on judges' capacities in order to lobby for.

I don't think there's more to be done here, but if there were it would lie in taking the step that reporters are required to take and lawyers find professionally hard: really understanding both the facts and the other side.

Dementions

Ageless

Father Time: ∞-0

Dementia is not to be confused with senility, the mistaken conviction that as humans age they inevitably suffer serious mental decline; this has no medical support and, although I may have previously quipped that I was already suffering from the effects of old age, its suggestion is, quite frankly, disrespectful. Dementia, on the other hand, is a term used to describe a variety of symptoms, revolving around a decline in thinking skills that inhibit a person’s ability to perform every day activities. Dementia is real and it’s a problem.

Any source will list the most important risk factor as age. While the statistics are imperfect, most estimates have about 1 in 10 Americans over the age of 65 suffering from the disease; that figure rises to about 1 in 3 Americans with the age of 85 used as the cutoff.

Among the common symptoms of dementia are impaired memory, attention span, reasoning and judgment.

Best Behaviour

“The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour...” - U.S. Const. art. III, §1

Life tenure for federal judges, rooted in separation of powers, is an effective means of optimizing political independence for the judicial branch.

I was surprised to learn how exclusive the judiciary is; there have been less than 3,600 federal judges in our nation’s history. The federal judiciary is a position worthy of the respect it garners, and, for that reason, no truly radical suggestions are required. But if life tenure is here to stay (amending the Constitution is difficult), in the spirit of a living Constitution, its consequences need to be analyzed given the medical and technological advances in today’s society. With the exception of the life expectancy data, I compiled the following tables from an analysis of FJC’s Biographical Data of Federal Judges:

Judges are currently living longer than they were in the 19th Century, but are being appointed to the position at approximately the same age; this results in longer terms being served and older judges being active on the bench.

Further, and perhaps more alarming, is that judges are remaining active until death at extremely high ages. These trends raise multiple concerns.

One is the case content: the federal courts have original jurisdiction to all, often technical, patent cases. As sharp as my grandfather may be, he still writes letters in ink because it’s “more trustworthy than that electronic post-office shit.”

A second concern is its potential diminution on the effect of the Democratic Process. A judge being appointed with parallel political views of the President has a strong chance of serving 20+ years on the bench (just recently Scalia, Kennedy, Thomas, Ginsburg, Breyer). This incentivizes a more intense battle between the executive and legislative branches over judicial nominations (see Garland, Merrick) for positions that are supposed to be independent of external political pressure.

The third concern is Father Time’s spotless record. Dementia is far from an epidemic among judges, but there are enough instances that the concern should be taken seriously. An indicative example was Richard Owen: army veteran, opera-loving composer and judge at SDNY for over 40 years. At a 2007 hearing, he asked a lawyer to explain what e-mail was. If this seems like it fits under the “content” concern, it doesn’t: years before, he decided multiple cases that revolved around e-mail. This was something more. Perhaps, this was dementia.

Federal judges are essentially a self-policing group; the only external means of removing them from the bench is impeachment, which, for various reasons, is a heartless suggestion (see dignity, respect, pride). But the policing needs to improve.

To this point, more federal judges have died while active than all other reasons for termination combined. Potential solutions include an independent committee, free of political influence, to monitor judges’ mental acuity. Maybe the “senior-status” judges can reach, resulting in a reduced workload and more clerks, can become involuntary. But at a bare minimum, judges at an at-risk age for dementia should be required to undergo mental medical testing. Even if dementia’s effect on justice in this country is rare, it is irresponsible to let it happen in any capacity because, to defer to Judge Weinfeld, "there are no small cases."

Citation? No demographic data I know reflects that claim. "Average lifespan," meaning average age at death for persons reaching the age of 20--- which would be the relevant statistic, as child mortality is irrelevant to the argument? I think you will find yourself unable to confirm what is obviously a guess presented as fact.

now that figure is up to almost 80. This can have a major effect on the judge's competence in decision-making, but the judiciary in no way polices the competence of its senior members. That's like having a society where they didn't police the driving skills of their senior citizens...oh, wait.

Where do we go from here?

Two major steps can be taken to improve the essay.

First, if the real subject is judicial life tenure, as appears in this draft, the introduction to your brief civil service career is too long and the analysis of the real subject too short. An editorial rebalancing is indicated. I would guess that the civil service anecdote should be cut by two thirds to allow the space needed for the main act.

Second, an argument about whether the value of judicial independence outweighs whatever costs accrue from life tenure should mention the purpose of the institution, at the very least. A discussion of the historical and ethical arguments for judicial independence, a discussion of the long and varied history of the counter-argument for elected judiciaries in the US since Andrew Jackson, an explanation of the harms encountered from party-based corruption in judicial elections during the 20th century, the record of "retention election" political interference with judicial independence---all these would add the value of intellectual solidity to the essay, and at least one should be tried. Otherwise, there is the risk that the reader will conclude that the author thinks one short term of employment as a boiler mechanic qualifies him to decide large constitutional issues that have been thought about and worked through for centuries, and to do so by thinking about nothing larger or more expansive than himself and his own opinions. This will not be good for the reader's estimate of the author's credibility.

By the same token, an argument which depicts the cost of judicial independence as the reduced efficiency and competence of judges should at least present some evidence of the costs that is not based on cracker-barrel "common sense" the author pulls out from under his hat. Are judges less competent or productive in the latter portions of their judicial lifetimes? Surely some data should be summoned, something that could be referred to as evidence without laughter?

The Supreme Court I worked at was run by nine people of whom the majority were over 70, and more were above 80 than below 75. They heard and decided, as their predecessors had since the 1920s, 150 cases a year. Their current successors, who are collectively much younger than they were, decide less than two thirds, often scarcely more than half, the docket my boss and that Conference disposed of after full argument. Having evidence for your argument is not too hard to be attempted by a responsible learner. You can find various measures of Supreme Court productivity to consider, and the demographic information is easy to compile. In the lower federal courts it would take more work, but comparing the productivity of life-tenured federal judges with the work of term-elected state court judges (correcting for case complexity, etc.) is possible. You can certainly find work that has been published from which evidence can be derived.

The District Court judge, Edward Weinfeld, for whom I clerked, was eighty-four years old the day I arrived in his Chambers, and eighty-five the day I left. He started work at 4:30am and finished at 6:30pm, unless a trial kept him late, six days a week. He needed law clerks from 7:30am until when everything was finished, six days a week, every week of the year. He had been doing his job on the District Court bench of the SDNY since nine years before I was born. He read every word of every document filed by every lawyer in every matter, before he read a single word of law clerk writing. You can be sure that every word written by a clerk to a judge who had just finished reading and considering for himself every line of everything else was subjected to a level of scrutiny that (to take only one random example) you would not want me to apply to this essay draft. He was the most exacting craftsman of any sort I have ever known, and what he taught me, and why only someone like him could have taught our society what he taught all of us, needs to be taken into account in your philosophy somewhere.

This---the largest part---is the third and most important weakness of the essay. It's not an act of learning and teaching about justice: it's a blog post from the ressentiment of the generationally insecure. Why civil service law and tenure for public school teachers were found necessary in practice to control the corruption of political patronage that naturally followed from the opening of government jobs to party workers as a positive and necessary component of Jacksonian Democracy is something you could learn about. Not knowing the history, it is easy to see arguments based on current experience but hard to put those arguments in context, or know how the intuitions developed inexpensively through immediate personal experience have come to look in the longer light of sad and expensive collective experience: without historical context you are blind, and leading the reader as blind leaders do. Why academic freedom depends on academic tenure, or why judicial independence depends on judicial tenure of office not only "durante bene placito" but for life, are of course debatable propositions. But trying to debate successfully in ostentatious ignorance of the society's accumulated learning on the subject is to attempt the impossible. Still less effective is to make the work of judges either independent of the modest dignity of laborious effort (as I said in my essay about Judge Weinfeld), or independent of the non-mechanical grandeur, of the humanness and humaneness, of judging. There's a reason that not this society only, but most of the human race almost all the time since before we were fully human, has allocated judging to the old. Once again, any number of challenges have been offered to this human universal. To associate oneself with them is to be creative. To proceed as though no one had ever thought about the matter before is merely to show oneself callow, that is, subject to the notorious frailty of the young.

Job Security

-- By BrianMaida - 18 Feb 2016

Analysis of the Effects of Job Security

My first job out of college, also my first real job since my father's name was no longer on the paycheck, was as a Mechanical Engineer for the City of New York. During the interview, when asked why I wanted the job, I fed them some rehearsed nonsense about being a life-long New Yorker hoping to one day work for and improve the city I love; I was just giving the conclusion a logical form. But the truth was, I had just gotten through some personal issues and all I really wanted was security.

When I started working, I realized that being a municipal employee, and more importantly a member of the union, granted job security in spades. After one year on the job, employees automatically graduate from a provisional employee to a permanent employee. The [unofficial] graduation ceremony [at the bar] involved calculating what date you can retire. Theoretically, the only way to get fired as a permanent employee is by breaking rules; if you don't break a rule, you keep your job. Now, I say this theoretically because a man got caught masturbating at his desk and kept his job. So when the city says "permanent employee," they mean it.

Motivation

I was honestly blown away at how this job security effected the work ethic of the city employees. I felt as though no one ever did anything. I was considered "productive" and I felt like I never did anything. I realized first hand that when there is no accountability, no threat, no risk, it is really difficult to motivate an average person to work hard.

The NFL is the perfect flip side of this argument. I used to wonder why these guys would shoot themselves up with painkillers to play through injury, or risk getting CTE by playing through another concussion. Then I learned that the NFL somehow negotiated most guarantees out of player contracts: motivation.

Competence

Job security also greatly effects competence. Throughout any employee's lifespan, the odds are high that the field they work in will evolve, especially in our rapidly changing society. But if your job is guaranteed, do you really need to stay up to date?

Longevity

Job security also allows employees to stay on their job way too long. At my job, there was an old man named Humphrey, who actually worked hard (relative to the rest of us). Regardless, old Humphrey was still just as unproductive as the younger, less motivated employees. Old Humphrey insisted on doing all drawings by T-squared and pencil; he insisted on sending out proposals via regular mail; he wrote all his project updates in ink and had a younger employee (usually me) type them up; he usually forgot the younger employee's name. The bottom line was, Humphrey was just too old to be an engineer anymore.

Independence

A strong benefit job security is that an employee, with no threat of being fired, can speak openly and honestly. If you sat in a productivity meeting with some "permanent" employees and their supervisor, you would understand what I mean. My supervisor once asked my co-worker Manny why he thought he was so inefficient and he responded: "I think I need a more efficient supervisor." Translation if Manny was facing the threat of termination: "sorry boss, I'll try harder."

Application to the Federal Judiciary

Before law school, I was admittedly unfamiliar with the makeup of the Judicial Branch. During one of the first ConLaw? classes, we learned about Article III, Section 1: "The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour...." Federal judges are granted life tenure. I couldn't help but think, among all of the federal judges, were there any old Humphreys? Were there any Manny's? What impact does life tenure have on the profession of being a federal judge?

Motivation

Motivation should not be a major issue for judges, as the Constitution calls for their holding of office only "during good Behaviour," but in reality, the impeachment of a judge is very rare. Just look to the Supreme court for an example of lack of motivation. The Supreme Court receives almost 8,000 petitions annually, and decided on about 80 (1%) of those. In the 1980's, the Court decided almost double and received less petitions.

Competence

This is becoming a major issue among federal judges. When the Constitution was drafted, no only were there less federal courts, but the average lifespan of a person was in their 40s; now that figure is up to almost 80. This can have a major effect on the judge's competence in decision-making, but the judiciary in no way polices the competence of its senior members. That's like having a society where they didn't police the driving skills of their senior citizens...oh, wait.

Longevity

As was previously mentioned, the longer life expectancy also plays a major role in longevity being an issue. Older judges are living in a past time and are less in touch with reality and our changing society than a youthful counterpart.

Independence

This plays an important role, as life tenure removes the concern of making a politically unpopular decision and losing your judgeship. However, it also allows politically-exercised independence as the judges can voluntarily step down when a politically aligned President is in office.

--+++ Where do we go from here?

We adopt a system for the Supreme Court of 9 judges, each on 18 year terms, with a vacancy occurring every 2 years. All other federal judges are granted 20 year terms, but with competency reviews every 5 years. This way, there will be no more Old Humphreys and Mannys in the Judicial Branch.

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