Is Age Just a Number?: Judge Newman’s Age and Mental Capacity Questioned and the Necessity of Change in the Judiciary

Blog Post | 112 KY. L. J. ONLINE | November 14, 2023

Is Age Just a Number?: Judge Newman’s Age and Mental Capacity Questioned and the Necessity of Change in the Judiciary

By: Lindley Williams, Staff Editor, Vol. 112

More than thirty states and the District of Columbia have implemented mandatory retirement after a given age for their judges.[1] Courts such as Pennsylvania have adopted a mandatory retirement age of seventy-five, with judges having until the end of the calendar year to retire after reaching that age.[2] Seventy-five is currently the highest age limit at which a state judge may serve on the bench for states that have implemented mandatory retirement plans.[3] While many state courts have adopted a mandatory retirement age, federal court judges serve with life tenure or “good Behavior”.[4] Judge Pauline Newman—who serves on the Federal Circuit—is the oldest active judge at ninety-six.[5] Judge Newman is lauded for her work on patents.[6] Her colleagues have gone so far as to call her “the heroine of the patent system.”[7]

Throughout 2023, Judge Newman’s colleagues on the Federal Circuit questioned her mental fitness and ability to serve on the bench based on her allegedly threatening staff, being “frustrated, belligerent, agitated, and hostile,” and expressing symptoms of significant memory loss and confusion.[8] A special committee investigating her fitness requested that she “be examined by a neurologist and undergo neurological tests.”[9] Judge Newman refused to comply with this request.[10] Following her refusal, the Federal Circuit entered an order suspending her for one year.[11] Should Newman continue to refuse to comply with the testing recommended by the special committee, the order says that Newman may be suspended again after the completion of this year.[12] In response to the order, Newman has filed suit against her colleagues, specifically Judge Kimberly M. Moore, who serves as the chief judge of the Federal Circuit.[13]

Newman is far from the only judge to take advantage of life tenure and serve for a significant amount of time. Wesley E. Brown is the oldest judge in American history.[14] Prior to his death in 2012, he served as an active judge until he was one hundred and four.[15] With issues of age and competency becoming more common across the judiciary, it has become clear that there is no easy way to remove judges who may not be fit to serve.[16] The chief judge of a circuit may form a special committee to investigate claims of misconduct or fitness and may “request the judge to undergo a medical or psychological examination,” but they are not granted much power beyond that.[17] As more people lose confidence in the judiciary and distrust grows,[18] it is vital that action be taken to ensure the necessary removal of judges with waning mental capacity. Congress is being called upon to amend the Judicial Conduct and Disability Act and the Rules for Judicial Proceedings.[19] They should take this opportunity to either adopt a mandatory retirement age for federal judges or amend judicial rules to provide a clearer path towards removal of a judge so that the public may be provided with effective service from the judiciary.

[1] Aliza Shatzman, Newman Suspension Shows Need For Judicial Reform, LAW360 (Oct. 19, 2023), https://www.law360.com/articles/1734533/newman-suspension-shows-need-for-judicial-reform.

[2] Pa. Const. art. V, § 16.

[3] William E. Raftery, Mandatory Retirement Ages, Nat’l Ctr. for State Cts (2010), https://cdm16501.contentdm.oclc.org/digital/collection/judicial/id/308 (this record previously belonged to Vermont, which had its mandatory retirement age for judges set at ninety. The Vermont state legislature recently amended their Constitution and changed the mandatory retirement age for judges to seventy. Vt. Const. Ch. 11 § 35).

[4] U.S. Const. art. III, § 1.

[5] Shatzman, supra note 1.

[6] Michael Shapiro, Newman, Oldest US Judge, Feted Again in Non-Farewell Tour (1), Bloomberg Law (Oct. 13, 2023, 8:04 PM), https://news.bloomberglaw.com/ip-law/newman-oldest-federal-judge-feted-again-in-non-farewell-tour.

[7] Order of the Judicial Council of the Federal Circuit at 1, In Re Complaint No. 23-90015 (Fed. Cir. 2023), https://cafc.uscourts.gov/wp-content/uploads/JudicialMisconductOrders/September%2020,%202023%20Judicial%20Council%20Order.pdf.

[8] Michael Levenson, Federal Judge, 96, Is Suspended Amid Concerns About Her Mental Fitness, N.Y. Times (Sept. 20, 2023), https://www.nytimes.com/2023/09/20/us/judge-pauline-newman-suspended.html.

[9] Id.

[10] Id.

[11] Order of the Judicial Council of the Federal Circuit, supra note 7 at 69.

[12] Id.

[13] Levenson, supra note 8.

[14] A. G. Sulzberger, Wesley E. Brown, Oldest Judge in Nation’s History, Dies at 104,  N.Y. Times (Jan. 25, 2012), https://www.nytimes.com/2012/01/26/us/wesley-e-brown-oldest-judge-in-nations-history-dies-at-104.html.

[15] Id.

[16] C. Ryan Barber & Camila DeChalus, Alzheimer’s disease, retirement ‘pacts,’ and serving until you’re 104 years old: Inside the federal judiciary’s reckoning with age, Bus. Insider (Sept. 27, 2022), https://www.businessinsider.com/gerontocracy-federal-judges-red-white-and-gray-courts-supreme-2022-8.

[17] Rules for Judicial-Conduct and Judicial-Disability Proceedings, Rule 13(a), U.S. Cts, https://www.uscourts.gov/sites/default/files/judicial_conduct_and_disability_rules_effective_march_12_2019.pdf.

[18] Raymond J. Lohier Jr., Jeffrey S. Sutton, Diane P. Wood, & David F. Levi, Losing Faith: Why Public Distrust in the Judiciary Matters – And What Judges Can Do About It, 106 Judicature 71, 71 (2022).

[19]Shatzman, supra note 1.