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Who's to judge a judge is too old?

Supreme Court justices get to keep their jobs as long as they want, even if they can't really do it anymore. Some think it's time to rethink that.

By BILL ADAIR
Published August 21, 2005


WASHINGTON - Airline pilots must retire at age 60. Executives at many companies have to step down at 65. Florida judges are required to quit at 70.

But U.S. Supreme Court justices, nine of the most powerful people in the nation, have no retirement age. Like all federal judges, they can serve as long as they want, even though some have become senile or incapacitated on the job.

In the 1890s, Justice Stephen J. Field became so senile that he could not understand attorneys during court sessions and needed to be coached how to vote. In the 1970s, after his stroke at 76, Justice William O. Douglas became so confused that other justices made a secret pact to postpone cases in which he could cast a deciding vote.

Today, with 80-year-old Chief Justice William Rehnquist suffering from thyroid cancer but vowing to keep his job, there's growing support for a mandatory retirement age or a rule that would force justices to quit if they can't handle the job.

A recent Fox News poll found two-thirds of Americans support mandatory retirement. Other possible solutions include limiting justices to an 18-year term, televising court sessions to better show when justices are impaired or requiring mental acuity tests.

Jonathan Turley, a law professor at George Washington University, said it's not age per se that needs to be addressed. "We need a provision that allows for us to deal with a question of incompetence - regardless of when it occurs."

"Just prop me up'

Most workers can retire when they want. But some corporate executives, state judges and people in public safety jobs face mandatory retirement ages ranging from 56 to 75.

For the judges and public safety jobs, the reasoning is that abilities deteriorate with age. Airline pilots recently have challenged the rule, saying they remain sharp past 60, but Congress and the Federal Aviation Administration have kept the standard.

Many companies - including Intel, General Electric and the parent company of the St. Petersburg Times - require executives or board members to retire at 65. The rules are designed to bring in people with fresh ideas.

But Supreme Court and other federal judges are appointed for life, to insulate them from outside pressures. The Constitution provides for removal only through impeachment.

Richard Posner, a federal appellate judge in Chicago, calls the judiciary "a distinctly geriatric profession." On the current Supreme Court, the average age is 71. Rehnquist and John Paul Stevens are older than 80.

The average age when Supreme Court justices are appointed has remained steady at about 53 (nominee John G. Roberts Jr. is 50), but they are retiring later. Before 1970, the average retirement age was 68. Now it's 79.

David Atkinson, author of Leaving the Bench: Supreme Court Justices at the End, said many have been stubborn about staying.

"They feel there is no one else who can do the job," he said.

Some hang on because they have different views from the current president and want someone like-minded to appoint a successor. Legend has it that Justice Thurgood Marshall disliked President Reagan so much that he told a clerk, "If I die while that man's president, I want you to just prop me up and keep me voting."

"Like a mad man'

The Supreme Court's sessions are not televised, deliberations are held behind closed doors and justices rarely grant interviews. The secrecy makes it difficult to assess whether a justice is healthy.

Rehnquist missed five months of work and has looked frail since. A tracheotomy makes it hard to understand his voice.

"He just looks awful," said Atkinson. "How can he handle the cases in his condition? It takes a lot of energy to run a two- or three-hour conference."

Atkinson said the justices should be more open about their health.

"I don't think Rehnquist is being very responsible," he said. "He has not revealed the extent of the disability. I think we have an entitlement as citizens to know the physical and mental capabilities of these people who are making momentous decisions."

Examples abound of justices who became senile or otherwise impaired.

Field, an appointee of President Lincoln, appeared senile when he was in his late 70s. According to legal historian David Garrow, a fellow justice said Field acted "like a mad man" during some cases, became lethargic, and his comments in court indicated he did not understand the arguments. He refused suggestions to resign.

Field retired in 1897, at least two years after it was clear he was impaired.

Douglas, known for his energetic outdoor activities, suffered a stroke in late 1974 and came back to work three months later. The New York Times wrote that he "appeared for the first time as a frail and fragile old man, his voice thin and uncertain, his left arm hanging useless at his side, most of the once remarkable vigor of the outdoorsman drained away."

He called people the wrong name and uttered non sequiturs, according to Garrow. One hearing, he announced at 1 p.m. that a lunch break would be held at 12:30. He dozed off during arguments.

The other justices decided he was incapacitated and agreed on a pact to postpone cases in which Douglas would be the deciding vote.

Hospitalized in October 1975, Douglas announced his retirement two weeks later.

A mental acuity test?

Some law professors and historians say justices should have to retire at 75.

Garrow said it's not a perfect solution, but "it would preclude the vast majority of problems from occurring."

Others say a retirement age would force out justices who are fully capable.

"Many of the past disabilities of justices occurred in their younger years," Turley said. "An age limit would not deal with that."

He would like to see the court expanded from nine members to 19, to reduce the impact of a single justice, and a new process for justices to be reconfirmed by the Senate. It would be required after 20 years on the bench or if a majority of other justices believed someone was incapacitated.

Another idea is to limit justices to 18-year terms. But like the age rule, that might force judges to leave while they are still sharp.

Posner, the federal appellate judge, wrote recently on his blog that beginning at age 70, life-tenured judges and professors should be required to take a mental acuity test every five years. The results would not force a judge to retire, but would be available to other judges on the same court who could persuade their colleague to step down.

Posner said "the mere existence of the test would be a powerful signal to elderly people that, whatever their distinction, and even if they retain much of their acumen, they should be careful not to overstay their welcome."

Washington Bureau Chief Bill Adair can be reached at adair@sptimes.com or 202 463-0575.