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Monday, July 10, 2017

Posner on Aging Judges: Again Much More Right Than Wrong

Between more productive uses of my time, I'm hoping to circle back and comment on a few interesting things I read last week. I very much hope to get around to this post by Mark Tushnet on the obligations of those who comment on contemporary political issues. (I am deliberately generalizing from the more specific question addressed in his post.) Like many of Mark's best posts, I consider it interesting, provocative, and well worth reading-- even or especially if I disagree with it, as I do in this case. 

For now, let me discuss another fun item from last week: this dialogue on Slate (sorry!) between judges Richard Posner and Jed Rakoff on the question whether there should be age limits for federal judges.* Posner says yes: "I believe there should be mandatory retirement for all judges at a fixed age, probably 80." (Posner is 78.) Rakoff disagrees, and as the conversation proceeds Posner gets more Posner-y and Rakoff gets increasingly "taken aback" by Posner's musings, so much so that he uses the fierce ejaculation "Jeepers."

A longtime fan of Posner, I have nevertheless (and in keeping with what I think is a proper Posnerian approach; to hero-worship Posner is really a form of anti-Posnerianism) disagreed increasingly with his recent writings, partly in substance and partly as a matter of style and restraint. Indeed, in a close connection to the subject of the Slate dialogue, I have wondered whether Posner himself is not showing recent signs of decline--a question that I suggested is unlikely to be welcome in the legal interpretive community. As Posner has argued elsewhere, the subject of aging and old age itself is often and absurdly treated as "taboo." That's trebly true when applied to particular individuals and when, as with Posner, that figure has of late become a darling of liberals. (The same question is relevant to Justice Ginsburg, given not only her age but her increasing propensity for extrajudicial animadversions; Posner wrote in his book on aging and old age that the aged "have less incentive to conceal egocentrism and to engage in cooperative rather than self-aggrandizing conversation." But she too is treated by some as sacrosanct not a fit subject of the perfectly obvious questions one would ask about a parent or other aging loved one.) Not surprisingly, at least one person who disagrees in part with Posner's comments in the dialogue has suggested that Posner's comments reinforce his point about the need for mandatory retirement. 

I note my own previous questions about Posner's aging because, in my view, Posner is in fine form in this dialogue, and, to paraphrase an earlier post of mine, is much more right than wrong. Conversely and even more so, Judge Rakoff is much more wrong than right. Rakoff offers a number of defenses against mandatory judicial retirement ages. He argues that a number of federal judges "have served with great distinction into their 80s." He writes: "I respectfully disagree that Supreme Court justices don’t improve with age; on the contrary, many of them gain a broader perspective than they had when they went on the bench, and this enables them to pierce through the technicalities of which Judge Posner complains, so they can see the woods instead of the trees. As Justice Holmes so famously said, 'The life of the law has not been logic: it has been experience.'" He asserts that "in every country of the world, it has been the lawyers who have been in the forefront of confronting despots and promoting liberty." And he winds things up with this: "I’m sorry, Judge Posner, but in my mind, a love of the law and a love of liberty are inextricably intertwined." 

With all due respect to Rakoff, these statements are classic examples of what Posner likes to call "Law Day rhetoric"--the stirring language and windy invocation of broad but non-specific values that lawyers and judges use when reminding themselves and others of lawyers' vital importance . It's not that there's nothing to such values or statements. Motherhood and apple pie are both good things. But speeches invoking mom and apple pie don't tell us much about either. I would much rather live in a society with whatever "the rule of law" is than in one without it. But I'm not much impressed by general statements of this kind. In every sentence quoted above, I think Rakoff is closer to persuasion by cliche than to serious argument, and the arguments, such as they are, are more wrong than right. 

1) The fact that many judges have served with distinction into their 80s is doubtless true, but unhelpful and rather innumerate. Rakoff starts by citing what are generally agreed to be great judges in the first place, although Posner is right that their greatness is more assumed than proved and is overstated. Rakoff  gives us an imprecise numerator, and no denominator. He does not ask how many previously great judges declined, sometimes precipitously, with age. He doesn't show that those great judges remained great, as opposed to continuing to cast votes viewed by the interpretive community as great. Nor does he ask how much of the great work itself was done by law clerks, particularly in the later stages of those judicial tenures, and whether it might be cause for concern and an argument for retirement if the clerks increasingly did everything besides casting a vote. He says judges who fail are generally and gently removed by the chief judges of their district or circuit, but doesn't prove that this is effective and sufficient, and doesn't distinguish between judges who are clearly senile and more easily removed, and those who have simply declined enough to warrant retirement but might not be the subject of such efforts by chief judges, and might refuse under those circumstances.  

2) The assertion that Supreme Court justices "improve with age" comes not only with no denominator, but no evidence of any kind. I doubt its truth. I especially doubt the notion that they "gain a broader perspective" with increasing age. I think that is definitely true, but only up to a point. A judge may learn a great deal from ten or twenty years on the bench, because of the variety of cases she hears. (And the parties she encounters; but even district court judges are going to hear more from the lawyers than the parties. What parties do the Justices encounter personally?) But there is no reason to think that the learning curve is lifelong, or that it outweighs the eventual effects of decline, which may include fixity of views, tunnel vision, and other deficiencies. And there is something strongly lacking from this picture of judges gaining breadth of "perspective" and, to use the word from Holmes that he quotes, "experience" over time. Other than the variety of cases they hear, judges live cloistered lives; many judges complain in their memoirs and elsewhere about having to give up friends, associations, and other connections to the wider world. And it's a pretty privileged and princely cloister. It didn't take very much time as a law clerk for me to notice the air of deference and insulation from inconvenience that surrounds federal judges: the generous per diems, the potential for flattery from lawyers, law clerks, law schools, and bar associations; the habit of being called "Your Honor" by most of the people around them; the marshals waving them through the fortress of parking gates and detector machines in the courthouse. And that wasn't even at the Supreme Court level, which involves that level of deference, flattery, and insulation multiplied a hundredfold. The idea that judges eventually "see the woods instead of the trees" is dangerous enough on its own, since the trees are sometimes called statutes, precedents, procedural rules, and so on, and the woods sometimes amount to free-ranging views on politics and policy. But it's especially dangerous when combined with decades of relative isolation surrounded by legal courtiers. That's a recipe for hubris and judicial overreach, not "perspective." (Perhaps unfairly after that sentence, I note that Rakoff's relatively recent and now-frequent contributions to the New York Review of Books consist of broad-brush prescriptions for reform of the criminal justice system, the abolition of the death penalty, and so on. The prescriptions are less important than the question whether they should be offered by judges or fought over by politicians and citizens.)  

3) Spending enough time in this kind of environment can instill a tunnel vision about the relative importance of law, lawyers, and courts, as opposed to things like people, voters, and ordinary politics. Of course law and lawyers are important. The question is their relative importance, which can easily be overstated. Rakoff's generalization about lawyers being "in the forefront of confronting despots and promoting liberty" might best be viewed in that light. Posner responds, "I would like to see some evidence for this proposition, which strikes me, frankly, as preposterous." Preposterous? I don't know. Almost certainly vastly overstated? Definitely. And Rakoff's peroration about "a love of the law and a love of liberty" tells us nothing about either, and anyway has nothing to do with the possibility of judicial decline and the advisability of judicial retirement.

Posner has drawn the most heat for this statement in the dialogue: "It’s not true that . . . a decision must be supported by 'reason,' whatever that means exactly, to avoid lawlessness; personally, I prefer common sense to 'reason.'" I don't know whether the criticism counts as ironic, insofar as I see some of the adoring praise for some of his recent decisions as having more to do with their values and outcomes than the actual "reasons." I do think there are good grounds to worry about such a statement, especially from one who was criticized last year for what was taken to be a rather free-wheeling view of constitutional interpretation and followed it up this year with an opinion suggesting a fairly free-wheeling view of statutory interpretation. Without taking a view on any of that, I still think he is far more right than wrong in this dialogue--especially about the actual matter under discussion: the question whether there ought to be a mandatory retirement age for federal judges. But even that sentence is not half as objectionable as its critics suggest. I do think Posner's work on the bench has become too free-wheeling. But I also think that while providing reasons is a fundamental part of the American judicial process, it is easy to turn respect for "reason" into idolatry, to  think the "reasons" themselves do or mean more than they actually do, and to treat "reasons" as necessary while ignoring the question whether they are sufficient. (They are not: common sense is necessary as well, even if channeled through procedural rules, textualism, and other mechanisms, and even carefully elaborated and logical "reasons" are not necessarily reasonable.) 

Given that I've criticized Posner in recent years and suggested, not that he is unfit or hugely affected by age, but that it is not wrong  to ask such questions, I'm happy to find him in such excellent form in this dialogue. 

* As a side note, Posner was slated (so to speak) to be part of Slate's Supreme Court Breakfast Table this year, at least according to the first post. Unless I've missed it, I don't think he ended up contributing anything this year. Since I generally find him the only seriously interesting contributor sitting at the "Table," I was sorely disappointed by his absence. 

Posted by Paul Horwitz on July 10, 2017 at 12:11 PM in Paul Horwitz | Permalink


What about a maximum age a person can run for office? Say, no one over 60*, can run for federal elected office or accept a judgeship? And then have a 12-year term-limit for all offices?

*or who otherwise would be eligle for social security (based on age alone) during their tenure

Posted by: Benji | Jul 10, 2017 12:47:55 PM

Benji, I'd argue that a more logical structure would be to set a mandatory retirement age for judges at 75, starting with those confirmed after the passage of the requisite constitutional amendment. I don't know that we'd want a relatively young judge have to worry about what he's going to be doing following the end of his fixed term.

Posted by: PaulB | Jul 10, 2017 2:36:32 PM

"The assertion that Supreme Court justices "improve with age" comes not only with no denominator, but no evidence of any kind."

Which differentiates it from Posner's claims how, exactly?

Posted by: jph12 | Jul 10, 2017 4:14:56 PM

I don't know that Posner makes a lot of positive claims or claims of the sort for which he could adduce evidence, and the claims he does make that are verifiable, while not supported by evidence in this short exchange, aren't the kinds of claims for which I would expect evidence in this context. So his first claim is that "Blackmun, Stevens, and Souter were not giants. Nor was Brennan, although he was both able and influential, as indeed was Stevens..." No evidence is offered, but obviously he's relying on his reading of the named Justices' opinions, which I wouldn't expect him to elaborate on here. It's also worth noting that, while I like Souter a lot, most people would probably agree with this claim, subject to some semantic cavilling about the meaning of "giant" as applied to Brennan. He then says some things about Brennan which he supports with memories of his clerkship. He then makes a fairly plausible claim about what "during good behaviour" means. Then he says that he's not aware of cases where judges have improved with age. Here, no evidence is given, but, unlike Rakoff's claim that judges do improve with age, which Rakoff could give evidence for if he had some, I'm not sure how Posner's supposed to marshal evidence that judges, at best, don't get worse in old age. Though again I think he's right; can anyone think of a judge who started writing materially better opinions in their seventies or eighties? Then there's the claim that a brilliant businessman could be a good Supreme Court Justice, which does seem implausible but is also pretty impossible to offer evidence for. Finally, he says that life-tenured judges aren't so independent that they don't worry about reversal and criticism from politicians and others, which seems obviously empirically grounded in his own experiences in the judiciary, though he doesn't give examples, for obvious reasons. And he says that Blackmun, Stevens and Souter didn't improve with age, which I think is true. Rakoff seems to have brought them up as examples of judges whose views changed with age, which is supposed to show that age is valuable, but the main change in all three cases seems to have been becoming more programmatically liberal. If anything, I think Blackmun and Stevens became less thoughtful, and certainly more predictable, jurists as they aged; while I'm sure a lot of people were glad to have picked up Blackmun's vote in the 80s and early 90s, evolving into the kind of judge who wrote "Poor Joshua!" and wrote a concurring opinion just to remind voters that abortion was on the ballot in the 1992 presidential election probably isn't something that many people see as a positive development. Becoming less thoughtful, more extreme and predictable versions of themselves is something a lot of older judges and indeed thinkers of all sorts seem to experience; Posner, as Professor Horwitz alludes to, is himself a marked example of this

Posted by: Asher Steinberg | Jul 10, 2017 5:01:25 PM

No, his first claim was that there should be a mandatory retirement age of 80 for federal judges. I don't necessarily disagree with a mandatory retirement age, I just dislike "your side has to provide evidence, which my side can attack as being inadequate, but my side must be taken seriously even though we've not offered any evidence at all" arguments.

Posted by: jph12 | Jul 10, 2017 5:53:39 PM

A mandatory retirement age is both over-broad and under-inclusive, as are all such discriminations. The problem isn't age. Plenty of octogenarians are as sharp as they over were, and plenty of 50-somethings don't have the mental acuity we'd like to have in our judges. It's true, perhaps, that mental acuity and age are negatively correlated, but it seems far better to me to come up with a mechanism designed to weed out people who are not up to the job than to case such a wide net. I admit I don't know what that mechanism would be at the moment but it doesn't seem like it should be an insurmountable problem.

I would even prefer term limits to a mandatory retirement age. Those at least treat everyone equally - you get 15 years (or however long) as a judge and then you're done. Much of the most insidious discrimination starts because people have the best of intentions but it's almost always better to seek out the problem you're actually trying to address than it is to use loose proxies for that thing.

Posted by: J | Jul 10, 2017 7:27:05 PM

It doesn't seem like it would be too hard to study this empirically. To the extent we accept reversal rates as a good measure of how well lower-court judges are doing their job--and I don't mean to gloss over the difficulties with that as the measure--why can't the impact of age on judicial decisions be measured and analyzed? Maybe this has been done already; I'm not up to date on the issue.

Posted by: Chris Lund | Jul 10, 2017 9:46:41 PM

Chris Lund writes: " To the extent we accept reversal rates as a good measure of how well lower-court judges are doing their job--and I don't mean to gloss over the difficulties with that as the measure...."

I think it's a plausible measure for district court judges, but I'm more skeptical that it's a good measure for circuit court judges. With a few exceptions, most circuit judges have a case they wrote taken by SCOTUS only once every few years.

Posted by: Orin Kerr | Jul 11, 2017 1:31:59 AM

Thanks for the comments.

You (or, more accurately and in my adopted Southern locution, y'all) are right that I don't talk about the non-lawyer point. I'm not sure I agree with it. I'm not outraged by it. Conversely, one thing that might outrage others about it, and therefore delight me, is that it would point to the degree to which, as with any increasingly complex and bureaucratized institution, judges are surrounded by aides and helpmeets who, like congressional staffers, can do much of the heavy lifting besides actually voting. It would thus deromanticize the whole idea of the judge--and many lawyers and legal academics call themselves realists but are really romantics about this and much more besides. But I'm not at all sure the good outweighs the bad. On the other hand, nominating judges who have law degrees but have spent much of their careers either doing something besides the straight practice of law--politics, among other things, but also business or at least transactional law rather than litigation--might give us a better upside mix, and isn't far from the usual cries for experiential diversity on the bench. (I'm assuming a *mix* here. I wouldn't want to get rid of all former criminal defense attorneys in favor of former CEOs as judges, and I assume Posner wouldn't either.) Ultimately, though, even if I disagree with this point, I thought it relatively minor compared to the matters I did discuss.

On Chris's point, I think even if we were fine with reversal rates as a measure (but of course there are good reasons to worry about that), it wouldn't show all that much, given the possibility that the serious work of decision-making and -writing gets taken over by staff once a judge has reached a certain degree of decline, that the staff is competent, and that it operates more or less algorithmically according to a mix of the judge's past decisions and current precedent. That's why I think Rakoff's reassurance that chief judges can gently ease out superannuated judges is not very convincing. Now, this might be a reason to care less about mandatory retirement altogether. I leave that for others to argue over. But I do think it makes measuring decline more difficult, whatever the measure--and I assume that decline means something more than just outright senility.

Posted by: Paul Horwitz | Jul 11, 2017 9:42:39 AM

I'm in the middle on the "non-lawyer point": I think the problem is not with "all lawyers," but with "all lawyers whose background — especially, but not only, their undergraduate education and straight-from-undergrad-to-law-school progression — is narrowly the same." We just don't appoint/elect judges from the small subset of lawyers who would be comfortable in (and able to ask intelligent questions because they'd worked in/around one before law school, even if years before) a research laboratory, or a refinery, or an automobile assembly line, or a parade ground, or an emergency room, to name just a few bits of foreign territory.

I can accept Justice Scalia's lament that he, personally, didn't understand either the basic (theoretical) science or the bench-machinery technology behind DNA testing in a case before him that was overtly about the law of evidence; no one can know everything. However, it is simply not acceptable that not a single judge who heard the matter — not just his colleagues, but the entire chain — was really any better off. "Diversity" means more than gender and religion and skin color... especially when one must make decisions based upon "diverse" fact patterns. "Inspiring personal stories of overcoming the odds" only go so far against ignorance, even the ignorance of just "I've never been there and now I have to guess about what it means."

Posted by: C.E. Petit | Jul 11, 2017 11:23:53 AM

In the linked piece, Posner opines that:

(1) Article III need not and should not be read as conferring life tenure on judges, notwithstanding that this is exactly how it has long been understood;

(2) bright non-lawyers could do just as good a job as Supreme Court justices as well-credentialed lawyers because only their law clerks need to know the "antiquated crap" that is the law; and

(3) legal decisions need not be supported with reason but instead could be resolved with common sense.

Wouldn't we dismiss these sentiments out of hand if expressed by someone not named "Posner"? Increasingly, Posner is granted a hearing only because one political faction celebrates some of his more recent decisions and the reputation a much younger Posner rightly enjoyed.

Posted by: Curmudgeonly Ex-Clerk | Jul 11, 2017 11:38:53 AM

CEC, I am not at all unsympathetic to your last sentence. That said, his greatest value over time, in my view, is precisely in making arguing arguments that are normally not only dismissed out of hand, but not made at all. As I said in the comments and believe, lawyers and law professors routinely insist that they are realists, but are routinely romantics, with a long list of suppositions--especially self-serving ones--that are dismissed so thoroughly and treated as so unspeakable that various propositions about "the rule of law" and so on often more closely resemble The Book of Common Prayer than to testable or debatable ideas. That I do not always agree, and sometimes strongly disagree, with particular arguments or assertions he has made, and that he has often been treated as a hero (by the right, then the left) while being held carefully at arm's length and suspected as "unreliable," does not for me diminish the value of that approach or the overall number of valuable questions he has pushed within our professional and interpretive community. There is surely some exaggeration and not a little romanticism in this paragraph, I confess. But I do think he is (at his best) tremendously valuable and for roughly this reason, and I do think too many lawyers and law professors are too romantic and fixed about particular values--phrases, really--that ought to be pushed at.

I think I addressed adequately my ambivalence about at least (2) and (3) above; I don't, for instance, reject the need to provide reasons, but I do think--surprisingly, given our soi-disant realism and post-this-and-thatness--that we tend to treat reasoned elaboration in an unduly idolatrous fashion. And I will flip your question a little and suggest, as I do in my post, that the things Rakoff says in his side of the dialogue are more or less literally "sentiments" that we are supposed to *accept* out of hand and shouldn't.

Posted by: Paul Horwitz | Jul 12, 2017 8:50:25 AM

I'm not going to defend Rakoff's pablum. And if I thought Posner had merely become acerbic in response to Rakoff, I'd give Posner a pass.

But for years now Posner has been telling anyone who'll listen exactly what he believes and it is inconsistent with any reasonable understanding of the role of appellate judging. Posner bridles at any constraint on his own power to make (what he perceives to be) wise decisions. In Hively v. Ivy Tech Community College, he openly advocated the judicial updating of statutes "to avoid placing the entire burden of updating old statutes on the legislative branch." In Mitchell v. JCG Industries, he made his own fact-finding beyond the appellate record as confirmation of his "common sense intuition." These are just two recent examples, and his current remarks in Slate are more of the same. When Posner says much of the law is "antiquated crap" that a judge need not concern himself with, he means it; the proof is in the Federal Reporter. His remarks about life tenure and Article III are not intended as a provocation or a thought experiment; he genuinely sees Article III and its longstanding interpretation as no obstacle whatsoever to his proposal regarding mandatory retirement. This is the same Posner who previously wrote in Slate that he sees "absolutely no value" in the study of the Constitution. Precedent? Posner quipped, "let's not let the dead bury the living."

Posner does not provide a corrective to Rakoff's sentimentality. Posner only has on offer an equally indefensible approach.

Posted by: Curmudgeonly Ex-Clerk | Jul 12, 2017 11:06:12 AM

Wish I had the time to read all of it. Sad.

Posted by: Bapoo M. Malcolm | Jul 13, 2017 5:09:26 AM

Anyway, R Posner, J. is a great guy. A lot of fodder, from his judgements, to my articles mill.

Posted by: Bapoo M. Malcolm | Jul 13, 2017 5:16:30 AM

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