In this article on Slate, Joel Cohen (a partner at Stroock & Stroock & Lavan) interviews U.S. Judges Richard Posner and Jed Rakoff on whether there should be age limits for federal judges. Posner succinctly endorses limits, saying there “should be mandatory retirement for all judges at a fixed age, probably 80.” Rakoff takes the opposite (and conventional) view, saying “life tenure is what guarantees federal judges their independence, enabling them to speak their minds freely, administer justice without fear or favor, and provide necessary checks on the other branches of government,” and adding that “any tampering with this is likely to devolve into politics.”
The ensuing discussion is pretty interesting, including Posner’s blunt dismissiveness about most of Rakoff’s points, and Rakoff’s rather flabbergasted reply: “Jeepers, I’m a little taken aback by Judge Posner’s salvo.”
But here I want to focus on one statement by Judge Rakoff that is only indirectly related to age limits:
As Justice Holmes so famously said, “The life of the law has not been logic: it has been experience.” I know that I am a better judge now than when I first went on the bench 21 years ago, because of the lessons I have learned through experience, and I suspect the same is true of most judges, even those as brilliant as Judge Posner.
How true is it that judges get better with experience? And even if so, when do they reach the top of the learning curve?
I can see that trial court judges would get better at case and courtroom management, which is an essential part of the job, and they no doubt become better at things like settling cases and dealing with troublesome lawyers. But how much better do they get after that? Does experience contribute to the quality or correctness of decisions? Does it help them evaluate witnesses, or do they just become jaded once they’ve seen it all? They probably learn how to avoid reversal, but does that make their decisions better, or merely more enduring.
The same questions apply with more force to appellate judges. Do they get better at combing the record? Do they become more thoughtful, or more impatient, during oral argument? Do they learn how to persuade their colleagues, or when to go along for the sake of collegiality? And if so, does that improve the quality of judging, or does it just make it easier for the judges to get along? Is efficient judging the same thing as better judging?
Most judicial decisions are self-validating, with no outside metric or control to determine quality. I’ve heard many judges say that they can tell when a witness is lying, but most actual studies show that professionals (including judges) cannot really identify deception. Of course, your confidence will only increase when all of the “liars” go to jail, and the appellate courts affirm on the basis of the trial judge’s opportunity to observe demeanor.
So, how exactly do judges get better with experience, and when, if at all, do they reach the point of diminishing returns?
I can see why the discussion may not have been terribly productive. The two positions, at least as represented in your first paragraph, are not in fact at odds with each other. An age limit does nothing to diminish the independence of judges.
I come down mostly on Holmes' side, and although I practiced for only seven years I did see new judges improve. (I do appreciate the irony of my answering this question based on experience).
I'd like to push back on the implied assumption that a trial judge's substantive improvement is merely a function of learning to avoid reversal. There is some of that going on, but in other cases, judges sometimes simply don't know an obscure rule until they experience being wrong. A judge finds a declarant "unavailable" under FRE 804(a)(2) despite not "ordering" the witness to answer. The judge never makes that mistake again. This can be attributed to an experiential accretion of knowledge.
Also, pro-Government, gung-ho new judges learn that incarcerating every defendant often leads to more, not less, recidivism. The low-level first-time offender leaves prison now unemployed and unemployable, leading to encore appearances on the docket. Experience pushes the judge to a more nuanced understanding of the impact of punishment.
I could go on. The point is that there's a reason why citizens want judges who come to the bench with more experience. Not only do they likely know the law better (perhaps through pure logic), but they also understand how humans react to the imposition of law and make decisions accordingly.
Seconding Derek, with the caveat that *implementing* an ge limit at any given point would be political.
Barry,
I think it could be implemented in a pretty non-political way. For instance, it only applies to judges appointed after 2025, as opposed to say, an outgoing party imposing the limit on an incoming administration from the opposite party… (for some reason this sounds familiar).
It'd also make sense to have it be an age or a minimum number of years, whichever comes later. So, after having reached 80 years and also having served for 7. I don't know how many judges get appointed that late in life, but I don't see why we have to automatically disqualify them.