From The Ethics Alarms Archives: “Age and the Judge,” And A Current Day Example.

The discussions regarding Joe Biden’s age-related decline reminded me of a post that had been languishing on the runway since mid February. It was prompted by a tip from Neil Doer (I think it was Neil) who pointed me to this article about  a well-respected federal judge in Brooklyn, Jack B. Weinstein who was retiring after more than a half-century on the bench. He’s 98 years old, and it seems like he’s been an outstanding judge. My position was and is, however, that it is unethical for a judge, and indeed any professional, to continue in a position of responsibility at such an advanced age.

Obviously, I would apply that principle to politicians and leaders as well. This is another area where professional sports, especially baseball, provides useful case studies that can be instructive. Players who were great at 25 are also better when they are 40 than the more average players, whose natural decline as the result of aging will usually cause them not be able to perform  at an acceptable standard by late middle age. The great player often will still be good, but almost no player (almost) will be as excellent in his late 30s and early 40s as he was in his prime. As the financial benefits and other perks of playing major league baseball have increased over time, fewer aging greats are willing to go gentle into the good night of retirement. Their last years are often sub-par, certainly for them, or worse, but they will not voluntarily retire. Check the records of Miguel Cabrera, Pete Rose, Willy Mays, and Mickey Mantle, to name just a few.

Famously brilliant and contrary judge Richard Posner took the unpopular position among his colleagues that federal judges ought to have a mandatory retirement age. He recommended 80, but in his own case, when everyone expected him to stay until the bitter end, he retired at 78, because, he said, it was time. I’m not convinced that 80 isn’t still too old, but at least it’s a limit.

I remember well my one meeting with Antonin Scalia at a bar function not long after he had joined the Supreme Court.  He was relaxed and jovial, and when I asked him how long he thought he’d stay on the Court, he laughed and said that he couldn’t imagine staying until they “carried him out,” like so many other justices. He said it was important to leave the bench “while you still have most of your marbles.,” and to him, this meant before 80. He said he would stay about ten years.

Antonin Scalia died while still on the Court, in his 20th year of service, just short of his 80th birthday.

Here, from 2009, is “Age and the Judge.”

___________________________________________

U.S. District Senior Judge Malcolm Muir recently turned 95.  Many articles in the media celebrated his long and distinguished career, but none made the observation that should be as obvious as it is indelicate. Judge Muir should not be on the bench. He should probably not have been on the bench for the past decade. It is irresponsible for him to continue to be a federal judge.

Federal judges serve for life, and there is no mandatory retirement. We can argue about the point at which common sense and respect for the judicial process dictate that judges should voluntarily step down, for it is true that individuals age differently. They all do age, however. Wherever the line is, 95 is over it. Yet Judge Muir continues. Muir, who was appointed by President Richard Nixon, says he feels good and able, and there is no apparent reason to doubt him. Many elderly people, even those who reach his advanced age, maintain what is called “crystallized intelligence”: learned and stored information and vocabulary accumulated from education and experience. It also includes the application of skills and knowledge to problem-solving. Being a judge, however, also requires what is called “fluid” intelligence, which includes the abilities needed to process information: thinking, reasoning, rapid analytical ability, attention span, ability to remember. By the time anyone is 95, and usually quite a bit before that, fluid intelligence starts to decline. It may not do so sufficiently to seriously impair day-to-day activities, but being a federal judge is intellectually challenging work. It is almost—not quite, but almost—certain that Muir has some age-related impairment. He also clearly has more gray matter to lose than most.

This raises a difficult question of fairness and duty. Assuming Muir is not as able as he once was, when does that create an ethical duty to step down? When he can’t meet his own standards of performance? When he is diminished, but still more effective than most of his colleagues? Is it when he no longer is as good as an average judge, but far from the worst? Or should he wait until he can’t do the job at all? In this an aging judge is not much different from one with a steadily increasing substance abuse problem. Professional organizations recognize that alcoholism and drug addiction, like aging, are progressive diseases. They don’t, strictly speaking, become ethics problems until they cause the victim (if you don’t think of aging as having victims, I’ll give you my mother’s phone number) to begin failing at his or her professional obligations, or to unreasonably risk failing at them. Yet there is no consensus about at what point some diminished ability qualifies as “failing.” If Muir is still one of the better Federal judges, which is possible, how can we say he is failing?

This is how the judge is failing. He is failing because he is playing Russian Roulette with aging, just as an alcoholic who continues to drive or perform heart surgery or defend accused murders is playing Russian Roulette with the bottle. He has an obligation to quit before age-related decline causes him to make bad decisions that adversely affect people’s lives, but it seems that he is hell-bent on staying in his job until he can’t—and by that time, great harm may have been done. The responsible substance-impaired doctor has to check into a rehab facility before he kills a patient. Judge Muir says he loves being a judge, and can’t think of a better job. It will very  hard for him, after more than half a century of wearing judicial robes, to stop, but he needs to demonstrate his respect for the justice system he loves and has served so well by making the great sacrifice of giving up what he loves, forever.

There are qualities that I call “the activating virtues.Courage is the most critical one, and another is sacrifice. They are the qualities that sometimes have to be called upon to allow us to fulfill  other ethical virtues when we don’t really want to, or when doing so involves pain. Judge Muir needs to use courage and sacrifice now, to deliver on the ethical duties of responsibility, respect, fairness, and citizenship and the many values they encompass.

One more of the activating virtues is called for, and that is humility. Judge Muir has to accept that he isn’t like so many of the ancient guardians in mythology, who have a job assigned by the gods that no one else can perform, and who perform that job—rowing dead souls across the River Styx, for example—for eternity. He is not essential. There are younger men and women who can do his job well, and it is time he to accepted that they should.

The ethical professional knows when to quit. The 95 year-old judge needs to crown a wonderful career by doing the hardest the thing of all, because it is the right thing.

10 thoughts on “From The Ethics Alarms Archives: “Age and the Judge,” And A Current Day Example.

  1. This is interesting. Pope Benedict XVI retired and was heralded for his bravery and sacrifice. As well he should have been.

    Likewise, Neil Peart, the percussionist and lyricist for the greatest band on the planet, Rush, announced his retirement at the end of the band’s 2015 tour, citing his health, and wanting to spend time with his new wife and young daughter – all worthy reasons to retire, especially having performed as the band’s drummer for over 40 years. That is a long time in the rock world.

    During the tour, he would comment on his periodic blogs about the punishment the road takes on a performer of his caliber. See, a Rush show, to those not fully embraced into the Rushinati (“we have assumed control”), a Rush show/concert is not a 45 minute concert with an opening act. On the contrary, the typical concert consisted of two one and one-half hour sets with a 20 minute intermission, excluding introduction and exiting videos. Rush’s music is technically demanding and the band members want to perform at their highest possible capabilities. They believed that show attendees deserved them at their best. For the most part, they delivered on that commitment.

    As for Peart, drumming Rush’s music involves spine-tingling drum fills, tempo and time-signature turns on a dime, and requires a technical precision that would tax the best drummers around. The band often referred to their shows as musical marathons. Alex Lifeson, the guitarist, also noted he suffered from arthritis, making guitar playing difficult and painful. Geddy Lee, the bassist, vocalist, and keyboardist, would note the road’s toll, as well. Lifeson and Lee wanted to continue but honored Peart’s desires. Remember, Peart is the guy who lost his daughter and first wife within months of each other in 1997-1998. For that guy to get back on the drummer stool and perform as he did after suffering such losses is nothing short of heroic.

    The band’s ethos was to give their music, shows, and most importantly, their fans, the best they had to offer. They didn’t want to do a Vegas variety show (a la Presley, Celine Dion and Def Leppard). They wanted to end their career at the top of their abilities. That, my learned friends, is ethics in motion.

    Citing health issues as a primary reason for his retirement, Peart left the stage in Los Angeles, crossing the front line meridian and waved to fans at the conclusion of the last show. Again, that signaled Peart’s full retire as he believed the front of the stage belonged to, and was the domain of, Lifeson and Lee – an area he respected. We, the Rushinati, understood an era had ended but what an era it was.

    Later, we learned that those health concerns weren’t exclusively related to physical trauma of the road and drumming; Neil Peart retired to that Great Drum Riser in the Sky on January 7, 2020, after a three and one-half ordeal with brain cancer, survived by mother, father, siblings, and most importantly his new wife and nine year old daughter. While we, the Rushinati, were crushed by the news, we honored his commitment, his dedication to his crafts (words and hitting things with sticks), and respect for his art and fans.

    So, yes, retiring with one’s full faculties is an ethics issue. Rush passed that test with flying colors.

    jvb

  2. Then we have the example of Ruth Bader Ginsburg who is 86 and has said that she wants to stay on another decade! Where is the sacrifice and humility in that. Although her wisdom soars above Justice Sotomayor perhaps she should consider writing her memoirs.

  3. And, if nothing else, this is the perfect post in which to mention Floyd.

    Floyd was at the top of his class at West Point.

    Scwartzkopf was a plebe when Floyd graduated.

    Floyd injured himself parachuting into Germany on a training exercise.

    He became a lawyer and the consummate Southern Gentleman.

    He told me about the time that he handled one of those big divorces and his firm submitted a one-page bill in the amount of over $500,000.00 “For Services Rendered.”

    He told me about the time he was able to obtain a Writ of Ne Exeat (I had never heard of it either).

    And, after a career of legal practice in Georgia, this principled conservative southern lawyer relocated to the State that Mondale Won.

    He did it for two reasons: his wife and one of his kids needed a change of environment because of pollen counts, etc., and Dick.

    Dick was looking for a legal partner and Floyd was looking to move north. Dick was Floyd’s exact opposite in every way.

    Floyd might have been able to tolerate Dick more than anyone else who ever lived.

    Close to 20 years later, I arrived on the scene. Dick was a great example, as much as a cautionary tale as anything else. He fearlessly pushed boundaries, even (especially) the stupid ones.

    Floyd was the opposite. Floyd, however, was serene.

    Floyd explained that he was done trying cases. And, this is the important part: he did not think he could try cases anymore. He knew the law, he knew procedure and he knew the rules of evidence. But, his hearing was going bad. He could not respond to witnesses or to the jury the way he thought he needed to be able to do to do his job. He resigned himself to “second chair.” But, he did so because he had too much respect for the work that needed to be done that he did not feel he was capable of doing.

    Dick had stopped trying cases for different reasons, probably because he was too “big picture” to have a grasp on the laws, procedure, or evidence.

    Floyd helped me prepare for a few and he was always there for advice, or to simply talk about legal ideas.

    They tell you as lawyers that you never ask a question you don’t know the answer to. One time, I told Floyd I was getting ready for trial and I had no idea what any of the witnesses were going to say in response to my questions. “Should that be my opening statement?” Tell the jury I had no idea what they were going to hear.

    “Yes,” he said, with some helpful remarks and encouragement.

    And, he was always there to discuss some esoteric aspect of the law.

    And, Floyd formally moved for my admission to the United States Supreme Court.

    I got in. But, you know what? All that admission gets you, besides getting to argue before the United States Supreme Court, is admission to the Supreme Court Law Library.

    Knowing this, on a trip to D.C., after buying a Supreme Court highball glass from the gift shop, I went to the Supreme Court front desk and told them I wanted admission to the law library. They said it was only for members of the court. I told them I was a member and they pointed me to the door down the hall.

    I got kicked out of Harrod’s when I was 18 for not having any socks on (I was actually going there to buy some socks at the time), but I got into the Supreme Court Law Library without even having to show my I.D.

    I do have to say: it is a pretty nice Law Library.

    Anyway, after a few years, Floyd stopped showing up at the office. They had cut his pay and, lawyer that he was, claimed constructive discharge and stopped coming in. At that time, I had already decided to start my own firm.

    So, one day, a week or three after he vanished, I showed up at Floyd’s house. I asked him if we could speak confidentially. He said yes, as I knew he would. I told him that a “few of us” were thinking of starting our own firm. We told him we could not pay him, but we could give him an office where he could continue practicing for as long as he wished.

    He took the matter under advisement.

    Within a week or so, he was back to work.

    A month or so later, we broke off and formed our own firm. They were all surprised because Floyd had kept his word. He never told them about our conversation, because, of course he would not-he told me he would keep it in confidence.

    Floyd was a good example of a number of things. But, perhaps the most important was that he knew when to quit. He knew when he could not do the job to the level he expected of himself (and what was necessary for the client), and that was the time to stop doing it.

    Sometimes, wisdom does not come with age. It did with Floyd. And, if nothing else, I benefited from his example.

    R.I.P. Floyd.

    -Jut

  4. Why, oh why, oh why do SO MANY lawyers insist on dying in the saddle??? Is it greed? Ego? Poor financial planning? Too many ex-wives and illegitimate children to support? Arrogance? Lack of imagination and an inability to enjoy the finer, or at least OTHER things of life? What’s wrong with simply going fishing at some point in your life BEFORE you have to take the dirt nap? Federal judges may be an even more egregious subset. I think in their case the power and deference is addictive.

    • That ls an easy one OB. After 20 years, there is almost nothing (and as I creep into middle age perhaps an unqualified nothing) that I would rather do than practice law. It’s just that $@;$ fun.

      There are some days in court that I’m having so much fun, if the world was fair, I should be paying my client for the privilege.

      • Yes, there are guys who “love the law.” Must be a litigator thing. Litigation is really just a fun game to the combatants. Are your clients having as much fun? I remember a senior litigation partner explaining how he began an engagement with a new client: “Well, you’re in really bad shape in this situation. It’s essentially hopeless. But I’ll see what I can do.” As a transactional lawyer, I felt I was an insurer of my clients’ financial well being, which got to me after twenty years and thanks to Mrs. OB, I abandoned the field to others better suited to the task. I’m a worrier.

        • No, clients don’t usually have as much fun, but sometimes they do, believe it or not. Litigators job is the same as yours: maximize gain or minimize loss.

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