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by George E. Reede, Jr. 

For almost 40 years, Judge Pauline Newman served with distinction as a member of the U.S. Court of Appeals for the Federal Circuit. And she would very much like to continue.

But on March 24, her suspension from hearing cases was upheld yet again: “The federal court system’s governing body…rejected ​another bid by U.S. Circuit Judge Pauline Newman, who at ‌98 years old is the oldest active federal judge, to overturn her ongoing suspension from the U.S. Court of Appeals for the Federal Circuit,” upholding “the Federal Circuit's decision from ⁠last year to extend Newman's suspension after she allegedly stonewalled her court's ​investigation into her fitness to serve.”

Judge Newman told Reuters: “I suppose ⁠it's my age that's really behind all of this.” Based on the writ petition she filed on March 12, Judge Newman suspects her colleagues are miffed because of her prolific dissents and believes foundational principles of judicial independence are at stake.

Her colleagues see it differently. It started with reports of “memory loss, a lack of focus, confusion over simple matters, uncharacteristic paranoia, and an inability to perform simple tasks,” along with a significant backlog of unresolved cases. Judge Newman’s unwillingness to cooperate with the Special Committee’s investigation into her fitness to serve prompted a one-year suspension that has since been renewed. These were “sad, difficult proceedings,” but the Court recognized the stakes are high:

We are acutely aware that this is not a fitting capstone to Judge Newman’s exemplary and storied career. We all would prefer a different outcome for our friend and colleague. However, we have a solemn obligation under the Act and an obligation to the litigants before our Court and court staff to take action—and not to simply look the other way— when it appears that a judge of this Court is no longer capable of performing the duties of her judicial office. Maintaining public confidence in the judiciary demands no less. And that duty constrains us in this case.

Should I stay – or should I go?

To be clear, some judges should not be allowed to retire or die – they are that good. But they do. The Honorable J. Frederick Motz, Howard Chasanow and, just recently, Catherine Blake, to name a few – great Maryland judges who come to mind who are no longer with us. Others have already weighed the pros and cons and opted to retire, moving on to new careers as mediators or just a well-earned, law-free existence. They really are missed. So, please, those of you still prepared to fight the good fight, live long and prosper – and stay on the bench.

But we are all human and limited accordingly. At a notch over 60, and as an obvious slacker relative to the likes of Judge Newman, I have contemplated retirement. We all do eventually. So, these are really issues for all of us to consider as we near the end – or potential end – of our careers.

In our federal courts, judges enjoy lifetime appointments, and state court judges often have a de facto version thereof based on the appointment and retention process. Absent some form of age limitation (“statutory senility,” as some judges ruefully call it), the decision to stay or go is almost entirely up to each individual judge.

With that degree of judicial independence in mind, we turn to respectfully suggested considerations for the introspective jurist contemplating retirement. Of course, I am but a humble litigator, and I write from the perspective of the beneficiary, or perhaps victim. But those of us in the trenches have a personal stake in a judge’s decision to stay or go, as do (more importantly) our clients. Again – the stakes are high.

APATHY

“This is just an insurance case.”

Having spent my entire career doing nothing but insurance cases, I found this disdainful comment during a motion argument disconcerting. The insured in attendance no doubt did too. The judge in question added that she did not have time for our case either – she had far more important matters to consider.

Not every case is riveting. Judges cannot be faulted if they find some cases engaging while others are like watching paint dry. But when boredom becomes indifference, the quality of a judge’s work drops precipitously, and this is no small matter. The Louisiana Supreme Court once noted that the “most severe discipline” was warranted for “judges who because of laziness or indifference fail to perform their judicial duties to the best of their ability,” lumping them together with judges who “use their office improperly for personal gain” and “engage in felonious conduct.”

In Dostoyevsky’s book, The Dream of a Ridiculous Man, the protagonist laments that he had not managed to solve a single problem, but after he “gave up caring about anything, all the problems disappeared.” This is a solution of sorts, to be sure. But not for a judge. A judge must care.

If apathy has taken hold a cure must be found – or it may be time for a judge to retire.

ANTAGONISM

If apathy involves caring too little, judicial antagonism is on the other end of the spectrum – favoring or disfavoring parties because a judge cares too much.

Thomas Jefferson, for one, did not believe judges should be “the ultimate arbiters of all constitutional questions” because “judges are as honest as other men, and not more so. They have, with others, the same passions for party, for power and the privilege of their corps[.]”Those dangerous “passions” are what we have in mind here.

Bias can be well hidden, even from ourselves. But actions eventually speak louder than words. Take the case of a Nevada judge who suddenly discovered the importance of time limits – after the close of the plaintiff’s case:

The time limits…were only enforced during presentation of the District’s case. The District…would only be able to call roughly one-third of its witnesses and put forward fewer than half of its proposed exhibits. As a result, the District’s case-in-chief was limited to 2½ days, compared to the 12 days afforded to Paradise Canyon.

The Nevada Supreme Court concluded this was a violation of due process, and just one of several inappropriate actions taken by the District Court that tipped the scale in favor of the plaintiff.

A disciplined judge will be self-aware enough to know their inclinations and guard against them. Otherwise, to quote Jefferson again, “with the corruptions of time and party,” a judge can become a “despot,” with entrenched antagonism toward certain parties and causes. Such antagonism warrants a personal reckoning, appellate intervention – or retirement.

ANGER ISSUES

As Solomon himself observed, a person who cannot “rule over” their “own spirit” is like “a city that is broken down, and without walls.” Anger, of the petulant variety, leads to poor judgment and regrettable actions. And when cloaked in the power and authority of judicial robes, uncontrolled anger is downright dangerous.   

In an extreme example, a Florida judge issued arrest warrants for traffic defendants who did not answer his docket call. They were innocently sitting in an adjoining courtroom pursuant to their summonses, or as directed by court personnel. Even after he learned the truth, the judge would not relent because “each defendant had the obligation to appear in the proper courtroom.” Before he finally signed orders for their release, the defendants had already been “handcuffed …chained…and transported to the jail where they were processed and strip searched.”

The Florida Supreme Court was unimpressed with the judge’s explanation:

[He] asserts that his conduct was purposeful and that he did not lose his temper. We are not sure which explanation is worse…A judge who cannot control his or her temper, or who acts disrespectfully to litigants, directly contravenes the command in Canon 3 B(4) of the Code of Judicial Conduct that “[a] judge shall be patient, dignified, and courteous to litigants, jurors, witnesses, lawyers, and others with whom the judge deals in an official capacity.”

Time and experience can make a judge kinder and gentler as their compassion grows for the world and its people – or impatient and angry because they will not bend to a judge’s will. If the latter is true, the time has come for retirement.

ARTIFICIAL INTELLIGENCE (AND OTHER CURSES OF modernity)

Most courts are not renowned for the early adoption of innovative technology. As one judge put it, “[t]he courts are very good at bringing the public yesterday’s technology tomorrow.” But like the rest of us, our judges are experiencing technological change at Mach speed, the most obvious being the cultural earthquake that is Artificial Intelligence.

If you have practiced law for over thirty years, you have survived the introduction of the mobile phone, the internet and email, to name just a few dramatic technological sea changes. Each one required learning and adjustment. Now comes Artificial Intelligence, and judges must once again learn and adjust.

Commenting on AI-driven mistakes that occurred in the chambers of two unlucky judges, Senator Chuck Grassley, Chair of the Senate Judiciary Committee, had a word of caution:

[T]he judiciary as an institution, has an obligation to ensure the use of generative AI does not violate litigants’ rights or prevent fair treatment under the law. The judicial branch needs to develop more decisive, meaningful and permanent AI policies and guidelines. We can’t allow laziness, apathy or overreliance on artificial assistance to upend the judiciary’s commitment to integrity and factual accuracy.

So once again, the bar is high – and the learning curve is steep.

On a smaller scale, an accountant friend just went through his final tax season using new (and inferior) software. He will retire without regrets. For many of us, the latest technological change eventually becomes one too many, with AI being the latest and most daunting example.

Judges are no different. For some, AI will prove to be their one too many.

AGE (or mileage)

In Raiders of the Lost Ark, when Marion tells Indiana Jones he is not the man she knew ten years ago, he replies: “It’s not the age, honey. It’s the mileage.”

Fact is, both take their toll. We are finite beings – even the best and brightest of us. Accepting that can be difficult, particularly when so much of our identity is wrapped up in what we do. But the wise among us know when to relinquish the careers and titles that too often define us.

At the close of the Biblical book of Ecclesiastes, the writer uses symbolic imagery to describe the impact of age. It is not pretty. Earlier in the book, he encourages us to accept reality: “To everything there is a season, and a time to every purpose under the heaven…A time to get, and a time to lose; a time to keep, and a time to cast away…”

Acknowledging the reality of the seasons of life, and our own limitations, requires real humility and wisdom. A judge will eventually need to make that decision and let go of both the privilege and weight of their responsibilities. And it need not be the end.

Alternatives

What about a fresh start? A new beginning?

Life with meaning and purpose can be found beyond the bench. With their unique experience, retired judges have much to offer and gain.

Mediation – what one judge called “the Full Employment Act for Retired Judges”[1] – is the most common choice, and judges who often sacrificed compensation to serve as judges can find it refreshingly profitable. Others choose to return to private practice for the same reason.

Teaching or mentoring law students and lawyers is another option. Do you remember the impact of hearing a judge speak about their experiences on the bench when you were in law school? You can be that judge for the next generation of lawyers.

And you might even have time for fun – whatever that looks like for you. Imagine that.

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The opinions expressed are those of the authors and do not necessarily reflect the views of the firm or its clients. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] Jacobs, M. (1996, July26). Many Judges Retire Early, Raising Earnings, Prestige. The Wall Street Journal (quoting retired Judge Armand Arabian, regarding judges and private mediation).