WASHINGTON — At 97, Judge Pauline Newman is the oldest full-time federal judge on the bench, but colleagues are fighting to get rid of her despite concerns about her ability to do the job.
For more than a year, he has been locked in a legal battle with fellow judges on the U.S. Court of Appeals for the Federal Circuit in Washington, D.C., who are trying to pressure him to step aside. Newman resisted and is still challenging the ruling that prevented him from hearing the cases.
Appointed to the court by President Ronald Reagan in 1984 to handle appeals in complex patent cases, among other things, Newman was sanctioned after refusing to undergo a neurological test as part of a judicial disability investigation.
“It was devastating for me,” Newman told NBC News. “As if I have dedicated my whole life, most of it, to this work, I don’t make any sense.”
When Democrats decided President Joe Biden was no longer fit to serve at the top of the ticket after his disastrous debate performance, a multifaceted pressure campaign convinced him to step aside.
But federal judges, as well as Supreme Court justices, have lifetime appointments and no easy process to relieve them.
Because people generally live longer, a lifetime encounter can now last decades. The average age of a federal judge is 69 recent researchand there is no clean way to force someone out of power.
“It’s not a bug, it’s a feature,” said Greg Dolin, a former Newman law clerk who now serves as her attorney. “There is no way to get rid of the judge, but I don’t think there is anything to change that. This is something to celebrate.”
On the other hand, some judges do not want to stay on the job for life for fear of losing their ability, and the courts have taken measures to help them.
“Judges are busy with very difficult work. We have a responsibility to the public to try to do our best, both mentally and physically, while performing and carrying out duties that can have far-reaching effects,” said Judge Phyllis Hamilton, a longtime federal district judge in Northern California.
Acute problem
Pressure on judges to retire often becomes public only when it involves a Supreme Court judge. While President Barack Obama was in office, liberal Justice Ruth Bader Ginsburg defied liberal calls for her resignation. At that time, he was in his early 80s and had several bouts of cancer.
She died in September 2020 at the age of 87, giving then-President Donald Trump the chance to replace her with staunchly conservative Justice Amy Coney Barrett, a sweeping change that turned the court into its current 6-3 conservative majority.
While the Supreme Court gets the most attention, “the problem is more acute” in lower courts because of the large number of judges, said Gabe Roth, executive director of Fix the Court, a court system watchdog.
It was there since last year 870 active federal judgesIncluding nine Supreme Court justices and judges who serve on 13 appeals courts and 94 district courts, according to the Administrative Office of the US Courts.
Of those, 70 district judges and 34 appellate court judges are eligible for tenure, according to an NBC News analysis, so judges take fewer positions but keep their titles or retire with full pay. information about judges from the Federal Judicial Center, the investigative arm of the judicial system.
The advancement of age is not only in presidential elections and the judiciary. The average age of members of Congress has also increased, reaching about 60 for members of the House of Representatives and 64 for senators. Congressional Research Service. Last year, attention focused on Sen. Dianne Feinstein, D-Calif., who showed signs of cognitive decline while in office before her death in September at age 90.
This has led some to argue that the United States has become a gerontocracy, a society led by older people.
“I think there’s something special about older people who enjoy a lot of power, if they give it up, they fear insignificance and neglect — you know, they’re going to be less important and marginalized,” he said. Samuel Moyn, Professor of Law and History, Yale University wrote an article on the matter. “I think there is a gerontocratic crisis in all branches of government, and obviously in many other places as well.”
According to an NBC News survey, Newman is one of only 14 judges in the court system who are still actively hearing cases full-time and who are older than Biden.
Coincidentally, three of the oldest active justices also sit on the same appeals court. Newman is joined by Judge Alan Lowry, 89, and Judge Timothy Dyke, 87.
Judge David Hurd of the Northern District of New York, who turns 87 this year, is the oldest active judge at the district court level, according to data from the Federal Judicial Center. He was appointed by President Bill Clinton in 1999 and recently announced his plans to run for the top job. He was previously canceled promises to step aside.
The second-oldest judge is Judge Nathaniel Gorton of Massachusetts, born in 1938, who was appointed in 1992 by Republican President George HW Bush. (The Federal Judicial Center database includes year of birth, but not specific dates).
All of the judges declined interview requests.
Hundreds of other old judges are still in office, but have been promoted. There are no exact figures on how many senior judges are still actively working on cases in the judiciary, but the 2023 Judicial Business Report says there are 520 senior judges with staff assigned to them, which means they can perform at least some judicial duties. shows that
These so-called “activist” justices are the ones most scrutinized for their resignations, or their refusal to do so, because when they announce their retirement, the president can choose a younger replacement.
Leaving active status does not require giving up a judge’s salary. Under court rules, any judge can retire or retire at age 65, meaning they will be paid as long as they serve for 15 years.
Legal historian David Garrow notes that actually holding high office can be “the best of both worlds.”
“You can choose how much you want to do or not,” he said.
Eyelids
Newman has considered retiring over the years, but says he still has a lot to offer based on his considerable experience.
He complained that his colleagues gave him an ultimatum in early 2023 and turned a blind eye without making any effort to approach him in a more friendly way.
“I still don’t understand why, at this point in my career, my colleagues decided to act like this,” Newman said.
His version of events differs from Chief Judge Kimberly Moore, who presides over the Federal Circuit and played a key role in the disciplinary action. In a partially redacted March 2023 ruling, Moore wrote that Newman suffered from a variety of health problems that at times made him “unable to perform the duties of an active circuit judge.” Moore wrote that other concerns were raised by court staff about Newman’s behavior.
In early 2023, contrary to Newman’s account, several judges brought their concerns directly to him, and one urged him to consider getting a higher position, Moore wrote.
Moore, who declined an interview request, said he investigates only when those efforts fail.
“I met with Judge Newman for approximately 45 minutes, where I noted concerns about his inability to perform active judicial duties and expressed concerns about his mental health. He refused to consider senior status, saying he was the only person interested in the patent system and innovation policy,” Moore wrote.
The Newman case is inconclusive because the debate over whether he should resign was so publicly aired that it led to lawsuits over the Judicial Conduct and Disabilities Act of 1980. It allows for a complaint against a judge who is allegedly incapable of performing his duties due to mental or physical disability. The law allows a judge with the right to retire must be deleted from active service after a lengthy process including appeals.
As a rule, the delicate question of a judge’s retirement or tenure is decided entirely behind closed doors, with other judges gently prodding the person in question or even asking for help from family members.
The courts, which have some autonomy within all courts, have tried to resolve the problem to avoid the need for more formal proceedings. For example, judges serving on courts under the jurisdiction of the 9th U.S. Circuit Court of Appeals in San Francisco can call a confidential helpline for judges with concerns about their colleagues.
Hamilton, a self-appointed Northern California judge in 2021, chairs the 9th Circuit’s wellness committee, which oversees various initiatives to help judges concerned about cognitive decline, including training sessions. Judges are encouraged to plan ahead, he said.
“We think it’s the independent responsibility of each judge to make sure they’re doing the best they can,” he said.
Politics is also a factor dictating when judges step aside, as many coordinate their retirements to ensure that the president who replaces them is from the same party as the president who appointed them.
While the focus has always been on Supreme Court appointments and the timing of vacancies, scrutiny of the president’s success rate in selecting lower court justices has increased since Trump made it a priority.
Biden followed suit. Six months into his presidency, he has appointed 202 district and appellate court judges, focusing on diversity. Trump appointed 228 people during his presidency.
The data shows that 78 out of 104 judges are active are Republican appointees who can be ousted, raising the possibility that some are waiting for another Republican president.
‘Random enough’
In legal circles, the shortcomings of the current system are acknowledged and this has led to some calls for more concrete reforms.
Jennifer Ahearn, a lawyer at New York University School of Law’s Brennan Center for Justice, called the process “pretty haphazard” and suggested there was more the court system itself could have done.
“You can imagine that the judiciary should do a better job of this and maybe have some kind of a more formal system,” he said, taking the matter into his own hands.
Ahearn’s group supports Biden’s recent call for term limits on the Supreme Court, a proposal that some say would violate the Constitution, and he has noted that such reform could apply to the judiciary as a whole.
Some additional reforms have been proposed, including a proposal to require cognitive testing of judges over the age of 70. Fix Court’s Roth also noted that the legislation to increase the number of judges would at least in the short term relieve pressure on some of the older judges relied on by the court system in some districts struggling with larger caseloads.
A bipartisan bill that would add 66 new judgeships recently passed the Senate and could receive similar support in the House.
“The easiest way to mitigate this would be to create more judgeships in places around the country that need new judges the most,” Roth said.