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.