Thursday, June 19, 2014


One federal judge who recently died was still going strong and even trying cases at 104 years of age. I'm not so certain I'd have enjoyed being a defendant in his courtroom, but as an attorney it'd have been beneficial learning from the judge's wealth of experience and knowledge. 

In federal courts in Florida the judges are appointed for life but should be subject to mental tests because the judges can not evaluate themselves effectively and defendants have the right to have a mentally competent judge presiding over their cases.
Only time will tell.
Would the broad sweep of time have given the judge special insights into the failure and success of federal law with a 'this too will pass' mindset of not letting the details be too troublesome? Or would he have been a nuts and bolts man looking over his shoulder to the federal court of appeals afraid  any slight error might result in being over turned? 

Yet for all of any judge's value to any particular court, within the American system of government only federal judges are appointed for life. Life can be a very long pleasant span of time despite an occasional Cuban cigar, the smoking of which at least in the Middle District of Florida in Tampa is a requirement for appointment.

So how long is life? Over many generations lifespans have expanded rapidly. In Elizabethan times Shakespeare died a fairly old man at age 52.  By the time of the constitutional convention in America the average life expectancy of an American was only 35 years; by the year 1900 the life expectancy for an American had gone up to 47 years, still quite young compared to the life expectancy of Americans by the year 2002 which was 77 years of age. 

But it's more than age, it's really a question of whether the judge still has the perspective, knowledge, talent, acumen and lets face it, the mental sharpness to be a federal judge. Sadly if the judge is losing his marbles, he's the least able to recognize it. The New Yorker recently had a brilliant article from a sufferer of parkinson's who tries to evaluate his mental decline. Though doctors give him tests that indisputably show decline, his internal evaluation of his mental capacity is more benign. 

Perhaps it's finally time to reconsider the constitutional protection afforded federal judges with life time appointments? Even a twenty year appointment would have a beginning and an end. The greatest benefit of a life appointment is that there is no end in sight, making it less likely that a federal judges would bow to political or popular favor in the way an elected state judge might.

If the term for a federal judge remains life, then federal judges should not be allowed to evaluate themselves as being mentally and physically fit to serve after a reasonable age. Is the judge mentally competent? There needs to be a system in place that forces federal judges to accept the evaluation of trained professionals who determine whether the judges are fit and this should include every federal judge even those on the Supreme Court.

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