« How has, can, should and will marijuana reform impact the work of defense attorneys? | Main | Should a MasterChef episode include a nutraloaf/prison cooking challenge? »

June 6, 2015

"Ditch the Geezer Judges" ... and consider RoboJudges?

The title of this post is the headline of this provocative new OZY commentary authored by Shannon Sims. Here are excerpts: 

Nobody said life is fair, but here’s a fair question: Why are so many judges so old? Here’s another: Should they be?

Conventional wisdom has it that wielding the gavel takes years upon years of lawyerly practice. Judging by that standard, the U.S. federal bench must be very effective, indeed: About 12 percent of the nation’s 1,200 federal judges are 80 or older, according to a 2010 survey by ProPublica.  Eleven were over the age of 90, almost three times as many 20 years before.  Other things that happened over those 20 years: the Internet. Plus smartphones, Twitter, Facebook, hacking, legal weed, etc., etc., etc.  Plus dementia and senility, for some. On issues of the day, like privacy or hacking, can older judges possibly keep up?

Unsurprisingly, the judges themselves have excellent arguments why age rules.  Richard Posner, a relatively spry 76, argues that it has to do with the American common law system, which is based on precedent: “The more a judicial system adheres to stare decisis (precedent), the older its judges will be on average,” he writes in his book Aging and Old Age.  Judge Posner may well be right — we don’t much want to get into an argument with a man who’s been throwing down from the 7th Circuit since we were a fetus — but we must point out another, far more prosaic reason our federal judiciary is so old: Federal judges have lifetime tenure. And in jurisdictions where judges face mandatory retirement at, say, 70, they’ve mounted campaigns to raise the limit to 80, citing their experience and a huge case backlog.

But why not have younger judges fill the gap? For years, in jurisdictions from India to France to Brazil, you could go straight from law school to a judgeship. Pass the judge test? You’re in. In Brazil, for example, meeting a 20-something judge in the streets at Carnaval is still not particularly remarkable.  We couldn’t say the same for most of our bench, save for, of course, the Notorious R.B.G. It’s true that in civil law countries, judges need not have years of experience in case law to draw an informed decision — they just consult the legal code. But even so, it’s worth remembering that even in our common-law system, clerks — recently graduated from law school — draft opinions. Why wouldn’t a few years of such intensive training compensate for the absence of life years?

Would younger judges be better?  Emanuel Bonfim, a Brazilian magistrate judge, says young blood “oxygenizes the system and lends a multigenerational dynamism to the judiciary.” He should know: He became a judge at just 23.  Today, he’s the president of the association of magistrate judges of the state of Pernambuco at 46, an age that he points out “would only mark the beginning of a judicial career in the U.S.” In countries dogged by corruption like Brazil, young judges might offer another benefit: Ostensibly, they’re more independent.

I have now updated the title of this post based on another provocative new OZY commentary, this one authored by Sean Braswell and headlined "All Rise for Chief Justice Robot!" Here are excerpts:

[W]ith the Supreme Court about to issue its long-awaited decisions on gay marriage and Obamacare, the question is, will we be rising for Judge Robot, instead of Justice Roberts, someday? After all, if being an appellate judge, as Roberts suggests, is really just a matter of calling balls and strikes — interpreting a statute, reasoning from precedent, or applying the law in a limited, mechanical fashion — then the gig looks increasingly ripe for automation, something that could be performed better by a computer, and without political or personal bias, age or infirmity, or ugly confirmation battles.  Other professions, from factory workers to stockbrokers, have learned that the better the world gets at simulating the outcome of your labors, the more redundant you start to appear.  Could the nation’s highest court, along with any appellate court charged with reviewing the application of the law instead of determining the facts, be fairer and more faithful to our founders if a modern-day version of HAL were striking the gavel?...

[W]hat Roberts’ umpire metaphor and other confirmation performances really appeal to is the public’s fear of bias — a desire to constrain judicial discretion and ensure neutrality as far as possible.  Thomas Jefferson himself shared this fear; he advocated ending “the eccentric impulses of whimsical, capricious designing man” and letting “the judge be a mere machine.”...

Whatever your constitutional philosophy, Justice Robot offers the promise of justice that is truly blind, that objectively applies the law equally to all citizens without error, bias or ideology. And yet, the question lingers.  Even if we are capable of building a judge that is, in Jefferson’s words, a “mere machine,” do we really want to?

June 6, 2015 at 10:29 AM | Permalink

Comments

I think we should think more about term limits of some sort than this sort of thing.

If anything, without term limits, it is really a better idea to have older judges -- nominate them later in their lives, so they spend less time on the bench. Thus, Lewis Powell was nominated in his 60s and had a nice run until he retired.

But, term limits could still result in many older judges for just that reason. I do question the abilities of judges after a certain age. But, even there, p/t work would in many cases be fine. John Paul Stevens is still spry at 95.

Posted by: Joe | Jun 6, 2015 11:39:20 AM

This question has been answered in the Comments. Apologies for these comments, but I have to wait for something, and have nothing better to do.

The lifetime appointment was one of the three biggest mistakes in the Constitution (slavery and patents were the other two). In the defense of the founding Fathers, Alzheimer would not describe his dementia for another 100 years. But do you know how the old can run at only a tenth the speed of their former selves? Same with thinking. We now have an Alzheimerocracy. Justice Ginsberg is so filled with hatred and seething with anger, she survived the unsurvivable, pancreatic cancer. Steve Jobs and Michael Landon, gone in weeks. Not her. She is sleeping on TV, but refuses to retire.

Judging is a profession separate from lawyering, a profession of advocacy. It is not for the young. They may know a lot, but have not suffered enough to understand the gravity of their job nor to be "wise." Judging should require the performance of another occupation involving taking responsibility for decisions, such as in the military, the police, business. You may ask, won't these former people be biased in favor of their former colleagues? The answer is, not necessarily. They may also know all their tricks and come down harder on their former colleagues.

Then go to judge judging school, 2 years of study, one year of apprenticeship judging cases under supervision. The main point in judging school? Apply the law, do not make the law. Then take a licensing exam, and have a licensing official sit in court as the applicant judges a case. No one may be elected or appointed without a judging license.

Allow the judge to be inquisitorial, and to do independent investigations. The judge may be the smartest, most objective, and most experienced person in the tribunal. Today a judge driving by the scene of the accident in contention will be impeached. The judge's assets are completely wasted today.

I am speaking of street judges, not of the elite members of the lawyer hierarchy. The lawyer hierarchy would be completely shut out of judgeships to the highest level. I said above, get experienced people as judge student. Anyone who passed 1L, would be excluded.
Bonuses for reaching goals, less crime, more business, i.e. outcomes. Fired if statistics are steadily negative in the jurisdiction, for 3 years.

Posted by: Supremacy Claus | Jun 6, 2015 12:14:51 PM

It seems to me that young clerks working for elderly federal judges serves the worthwhile purpose of educating both. I fail to see where in this item there is anything which supports the notion that having elderly judges is a problem. ( I am not in the legal profession in any way. )

Posted by: Gary Hill | Jun 6, 2015 7:28:10 PM

People see the lawyer profession as very stupid. Early cognitive impairment may be a factor, and not just the cult indoctrination of 1L.

http://en.wikipedia.org/wiki/Toilet-related_injuries_and_deaths

Posted by: Supremacy Claus | Jun 6, 2015 9:09:23 PM

Sorry, that link rebutted abolitionist argument of error rate in the death penalty. Yes, people die on the toilet, so lets' ban toilets and outhouses.

Here is the link on mild cognitive impairment. I would like Justice Ginsberg to undergo neuropsychological testing of her cancer chemotherapy damaged brain.

http://www.alz.org/dementia/mild-cognitive-impairment-mci.asp

I want the same testing for Justice Roberts after epileptic seizures repeatedly deprived his brain of oxygen, and he came out with some of his bonehead decisions.

Posted by: Supremacy Claus | Jun 6, 2015 9:13:23 PM

From the May 29 Comment.

"I have called for a reduction in the excess of lawyers, which is to the detriment of both the public and of the lawyer profession. We get less rent driven, unbearable oppression. The lawyer gets a higher income and far more respect. The public hates you lawyers. They want you dead. Also, the robots are coming, and even judging will be replaced by an algorithm.

The downsizing should start by the forced defunding and closing of the Top Tier of the US News and World Report Survey of Law schools."

If a left wing idiot comes up with the same idea as the Supremacy, it makes it self evident and inevitable.

Posted by: Supremacy Claus | Jun 7, 2015 9:45:55 AM

I have a clue for the judge app developer.

Oliver Wendell Holmes.

Never been shown to be wrong.

Posted by: Supremacy Claus | Jun 7, 2015 10:02:46 AM

SC.

There was that whole "Three generations of imbeciles is enough" bit.

Posted by: Soronel Haetir | Jun 7, 2015 11:24:44 AM

Ditching the geezer federal judges would require a system that fills the vacancy faster. A lot of federal judges are on active senior status or have announced that they will retire when their replacement is named. Currently, there are 58 vacancies, 23 of which have been pending for more than a year (with only three nominations made to fill the "old" vacancies. Of the 35 new vacancies, there are 10 nominations for those positions but an indication that the Senate will not act on any of them until 2017.

Posted by: tmm | Jun 7, 2015 11:30:26 AM

Get rid of the "geezer federal judges" ...No way! I haven't argued
before the Supreme Court yet.

Posted by: shurnuff | Jun 7, 2015 11:49:32 AM

tmm,

It may not be part of the argument of this particular piece but I have seen various proposals for getting rid of life tenure touting an easier confirmation process as one of the benefits. The thought being that if the stakes for any given judge were lower there wouldn't be as much obstruction.

Posted by: Soronel Haetir | Jun 7, 2015 1:08:59 PM

SH. Buck v Bell was correct, and well written. It has never been overturned.

DOJ must fund generously the search to find genetic markers for antisocial personality disorder (ASPD), and to encourage aborting those fetuses, to prevent the $millions in damages they will cause, the hundreds of injuries, and the multiple murders. The rate of this disorder is the same across races, as are all psychiatric disorders. Although I oppose abortion after the 20th week (minimal viability), I would make an exception for a carrier of the ASPD gene.

Posted by: Supremacy Claus | Jun 7, 2015 4:13:15 PM

Far more than any formal constitutional provision, the reason that U.S. judges are the most powerful in the world is the way that they are selected that insures that they are not just capable of passing the bar, but have been proven as successful in law practice and are generally politically savvy as well. Our judges are overwhelmingly intellectual and personal powerhouses compared to the Civil Law counterparts and these are the very capabilities that make Americans exceptionally comfortable entrusting judges with power that other judges can only dream of.

Posted by: ohwilleke | Jun 8, 2015 7:36:26 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB