Life Tenure: An Article III Judge's Version of a Death Sentence
INTRODUCTION
Life tenure, which is implicitly granted through Article III, is one of the most unique features of the Constitution.[1] However, some commentators, including judges themselves, have found that many of the problems associated with Article III judges can be attributed to age and the brain’s susceptibility to cognitive related diseases.[2] As more Article III judges stay on the bench into extreme old age, the natural result of mental decline becomes more prevalent and is increasingly difficult to avoid due to an Article III judge’s right to life tenure.
Over the years, Congress and the judiciary have attempted to confront problems associated with aging Article III judges by providing judges with enticing retirement incentives. Nevertheless, as one Justice noted, “[w]ith the size of the federal judiciary steadily on the rise, and with advances in medical technology making it possible to survive disabilities that would have been fatal in earlier days, the delicate question of whether a judge has (or in the past had) the mental capacity to sit will become increasingly troublesome.”[3]
In this Essay, I argue that Article III judges should be subject to confidential yearly cognitive testing to ensure the judge’s cognitive ability can keep up with the standards promulgated in the Judicial Canons. This Essay will first describe a judge’s duties as laid out in the Judicial Canons, as well as the basic concepts surrounding life tenure. Next, this Essay will explore how the mind is affected with age, and how age can contribute to the development of cognitive decline. This Essay will then provide examples of how Congress and the judiciary has attempted to solve the problem of aging Article III judges. Finally, this Essay will discuss how a yearly cognitive test is the best solution for solving the problem of an aging Article III judge.
A JUDGE’S DUTY AND LIFE TENURE
A judge is held to one of the highest, if not the highest, ethical standards within the legal field. Judges have five basic tasks: (1) they preside over the court proceedings and maintain order in the courtroom; (2) they determine the legality of the evidence presented in court; (3) they give jury instructions to a jury prior to its deliberations; (4) they determine the facts and decide the case in bench trials, and; (5) they convict and sentence criminals. To be able to do their job effectively, a judge must comply with law and be impartial, unbiased, and socially competent.[4]
In 1924, the American Bar Association (ABA) produced a canon of ethics that governs the expectations for effective and ethical judicial behavior. Under the Canons, a judge must be capable of acting with high integrity, competence, and sensitivity, as well as be socially competent to engage with anyone who walks in their courtroom in both a respectful and professional manner. In sum, they must have high functioning cognitive abilities. A judge, therefore, must have a highly executive functioning mind, a good memory, and the capability to regulate their emotions to diligently do their job.[5]
Life tenure permits Article III judges to hold their position for the entirety of their lifetime, as long as they act in good behavior, and they are only subject to removal by impeachment, voluntary resignation, or most commonly, death.[6] Life tenure was intended to promote judicial independence by allowing judges to rule according to the law without fear of repercussions (whether that be through demotion or dismissal) or, conversely, expecting favoritism from the executive branch (through a promotion or reappointment).
The Federalists were the strongest early proponents of life tenure for our judiciary. Alexander Hamilton argued that judicial tenure would provide the judicial branch with “firmness and independence,” and believed that the integral effect of life tenure was “the citadel of the public justice and the public security.”[7] However, he made these arguments in the late 1780s, when there was a significant negative social stigma surrounding brain diseases (such as dementia) that results in cognitive decline.[8] Due to the negative social stigma surrounding dementia, during this time period, many people who suffered from cognitive decline refused to admit they were because of the potential shame and discrimination they may have faced. Today, although not to the same extent, there is still a negative stigma surrounding dementia that can result in discrimination, potentially even in Article III judges.[9] The next section will describe how the mind can become subject to cognitive decline as it ages.
DIMINISHED MENTAL CAPACITY
The most common age-related disease that results in cognitive decline is dementia. Dementia is a general term used to describe an “impaired ability to remember, think, or make decisions” that can potentially affect everyday activities.[10] There are numerous forms of dementia, with Alzheimer’s Disease being one, that currently has no effective treatment.[11] The section will overview how exactly dementia affects the mind.
Dementia essentially affects how the brain operates. The brain is made up of circuit cells, which form connections and pathways that develop and become more complex with age. Although these connections and pathways have the potential to last for the entirety of one’s life, as the brain ages over time, these connections and pathways may begin to deteriorate, causing the circuits to lose the ability to communicate, which can affect cognitive functioning. Typically, the cognitive functions that are affected the most are memory[12], attention, communication, reasoning, judgement, and problem solving. These difficulties can occur in mild to severe forms, with some of the most severe forms affecting the person’s ability to perform daily activities.
Dementia is extremely prevalent; in the United States alone there are an estimated five million adults ages sixty-five or older who suffer from dementia.[13] Nonetheless, the mere fact an individual reaches a certain age does not mean they will also develop dementia. Age-related cognitive decline is typically thought to begin in late adulthood, however, a recent longitudinal research study has found that cognitive decline can begin as early as thirty.[14] Moreover, the study found that different skills such as reasoning, memory, processing speed, and spatial visualization decline at different rates.[15] For example, one study found that fluid intelligence increased until late adolescence then slowly begins to decline in early adulthood and continued to decline at an even faster rate in late adulthood.[16] On the other hand, crystallized intelligence was found to remain stagnant until late adulthood and then slowly begins to decline in some cases, and in others it may even continue to increase throughout ones lifespan.[17]
Although there is a strong correlation between age and cognitive decline that may affect a judge’s ability to function on the bench, it does not necessarily follow that there is a large number of judges who are currently or already suffering from cognitive impairments such as dementia. This may be because judges are a subgroup within the population who have a strong cognitive reserve, or the existing systems in place effectively arbitrates such conduct when necessary.[18] The following section will describe the formal and informal mechanisms taken by Congress and the judiciary in the ongoing battle against aging judges.
DISCUSSION OF FORMAL AND INFORMAL MECHANISMS
Currently, the average age for an American federal judge is sixty-nine years old.[19] It is apparent that federal judges choose to work over full-time retirement. This has posed a serious problem for Congress and the judiciary; a number of solutions, both formal and informal, have been enacted to tackle the apprehensions of cognitive decline in Article III judges. The most basic way to address this issue is by providing Article III judges with stronger incentives for retirement. This section will overview the retirement incentives created by Congress and the judiciary, as well as other informal mechanisms taken by different courts.
For most of the nineteenth century, Congress and the judiciary provided no incentives for aging and incapacitated judges to retire. It was not until 1869 that Congress first responded to the issue by passing a law that allowed judges to both collect the same salary as when they were active as well as to retire at the age of seventy.[20] Prior to this Act, judges were forced to choose between resignation and the loss of their salary or to continue to work to sustain their financial security, despite the fact they may be in mental decline.
In 1919, Congress introduced the option of senior status. Any Article III judge can claim senior status if they meet the “Rule of Eighty,” meaning their age and years of service, added together, equals eighty, and judges must also be at least sixty-five years old and must have served on the bench for at least ten years. However, senior status does not mean full retirement. Judges who claim senior status can still perform the same judicial duties as well as receive the same salary as any active judge. Currently, this is the most popular option for Article III judges rather than full retirement because it allows judges to continue to hear cases with full pay, but with a reduced caseload.[21] Additionally, this allowed the judiciary to appoint new judges while continuing to “benefit from the service of many dedicated and experienced judges.”[22]
Also in 1919, Congress gave the President the power to temporarily appoint a new judge in place of where a disabled judge sat. This provision treated the disabled judge as a junior colleague to the temporarily appointed judge. However, this provision has rarely been used; the available historical evidence indicates it has only been put into effect six times.[23] Rather than using these formal mechanisms of removing a disabled judge, the use of informal mechanisms has been the primary means of responding to the problem of aging Article III judges.
Such informal mechanisms include the Judicial Conduct and Disability Act of 1980, which established an administrative procedure to submit complaints against Article III judges who may have mental disabilities. Under the Act, anyone can file a complaint alleging a judge has acted in a manner inconsistent with the appropriate administration of a court or alleging that a judge is incapable of performing their duties as a judge because of a mental disability.[24] Once a compliant is received, the chief judge determines if there is sufficient grounds to warrant an investigation. In the event there is enough evidence, the chief judge will form a special committee, composed of an equal number of district and circuit judges within the circuit, as well as himself. The special committee will then conduct a formal investigation and will subsequently file a comprehensive written report recommending what, if any, action should be taken.[25] However, there have been few cases of formal complaints based on judicial disability since the enactment of the Act because “the data does not translate into an excessive number of disabled judges active in the judiciary.”[26]
Another informal approach some courts have taken is the promotion of judicial wellness. The Ninth Circuit was the first to establish “Wellness Committees,” with the goal to provide judges with resources and information regarding brain health and issues concerning aging judges. The First, Third, Fifth, and Tenth Circuit Courts have also established similar Wellness Committees that provides counseling and education to judges on the possibility of mental decline. In addition, the Ninth Circuit Wellness Committee created a Wellness Guide, available to the entire federal judiciary, that provides a detailed section on issues related to aging, such as Alzheimer’s, as well as resources and articles focused on aging. The Guide also recommends a list of steps for jurists to take when they suspect a colleague may be in mental decline. However, there is inadequate evidence suggesting that judges have used the resources provided by the Wellness Committees.[27]
Another way state courts have attempted to resolve the mental decline of presiding judges is through mandatory retirement. There has been an ongoing debate over the pros and cons of mandatory retirement, as well as the constitutionality of mandatory retirement. [28] While Article III judges are exempt from mandatory retirement through the protection of life tenure, there have been numerous attempts to legislate a mandatory retirement for Article III judges, although every attempt has been unsuccessful. One of the strongest arguments against implementing a mandatory retirement is the fact that every person ages differently.[29] For example, some judges who are older than the mandatory retirement age are not experiencing any mental decline, while on the other hand, some judges who are younger than the mandatory retirement age could be in decline.[30]
Moreover, there is no published neuroscientific research indicating there is a bright-line age where cognitive functions decline. Rather, research has demonstrated that “at older ages there is wider individual variation in cognitive abilities.”[31] The implementation of a bright-line age rule would not be perceptive to these variations. In addition, a bright-line age rule does not consider the growing evidence that gender plays in the aging brain. Specifically, current research suggests the female brain ages differently than a male and stays more youthful throughout the adult lifespan of a female.[32]
Many of the current solutions primarily depend on informal mechanisms that depend on the judges own self-awareness to be effective. However, what if a judge is unable to detect their own mental decline or is unwilling to accept it? The next section offers this Essay’s proposal: Article III judges should be subject to confidential yearly cognitive testing to ensure a judge is not suffering from mental decline.
ANALYSIS
Currently there is no direct evidence that estimates the pervasiveness of Article III judges who suffer from cognitive decline, but there is empirical data and strong circumstantial evidence that implies these concerns are not arbitrary, and the issue is prevalent enough to have caught the attention of Congress and the judiciary system. [33] As already mentioned, it is clear Article III judges prefer to work over full retirement. Yet, a judge has a duty to uphold justice by adhering to the judicial Canons and must do so while remaining impartial, unbiased, and socially competent. To accomplish this, a judge must have a both a good memory and a high executive functioning mind. A judge needs to be able to focus their attention while sitting on the bench; they must remember specific details regarding cases; they must juggle multiple tasks all at once, such as listening to a case while working on other mundane tasks at the same time; and they must make a final decision on the outcome of the case.
But these essential tasks of a judge can be affected with dementia. Dementia, regardless of what form it takes, affects an individual’s ability to think, remember, or make decisions. Dementia further effects an individual’s memory, attention, communication, reasoning, judgement, and problem solving. If a judge is suffering from cognitive decline, such as dementia, how could they possibly comply with the law if they cannot focus their attention on the bench, remember specific facts of a case, or even make a final determination on the case all while remaining impartial, unbiased, and socially competent?
As the available evidence suggests, the formal and informal mechanisms Congress and the judiciary have enacted to prevent cognitive decline in presiding Article III judges are rarely used, as can be seen by the small number of instances involuntary removal and the Judicial Conduct and Disability Act of 1980 have been invoked. In addition, judges must take their own initiative to educate themselves with the resource provided by the Wellness Committees, and there is inadequate evidence suggesting they take advantage of these resources. Lastly, while there has been an ongoing debate over the implementation of a mandatory retirement, creating some bright-line rule does not consider the fact that everyone ages differently, and the issue of aging judges is further exacerbated by the option to take senior status.
For the forgoing reasons, Article III judges should therefore be subject to confidential yearly cognitive testing to ensure the judge is mentally capable of doing their job. As previously mentioned, a judge’s memory and the executive function of the mind plays a crucial role in the basic tasks of a judge, as well as in the judge’s social competence and emotional regulation. There are several neuropsychological tests that can be administered to test these crucial functions of a judge’s mind. [34]
In 2001, the American Academy of Neurology (ANN) published a set of guidelines that recommends “cognitive impairment be assessed using screening instruments and neuropsychology testing batteries, and that such assessments may be supplemented with specific cognitive instruments that ‘focus on limited aspects of cognitive function’ (such as executive function) and informant interviews with individuals close to the patient.”[35] Not only should judges look out for themselves, but the judges’ families, their colleagues, the judicial council, litigants, professional associations, and common citizens should also be on the lookout for any evidence the judge may be in cognitive decline, and should be able to raise that concern to the judge.
To avoid Constitutional implications, the results of the yearly testing must remain confidential. It may be highly recommended they share their results with the Chief Justice of their circuit to explore further options, however it must remain solely at the judge’s discretion. This could be of potential concern if a judge receives negative results and decides not to disclose them with anyone. However, judges are considered to be highly ethical people, and choosing to continue to sit on the bench while they are aware they are in mental decline would go against the judicial Canons by allowing an outside interest to influence their ability to uphold the law.
Another issue that may arise with this Essay’s proposal and regarding neuropsychological testing would be developing a threshold to limit judicial capacity. However, it is not impossible to create a widely accepted solution through the establishment of a combination of tests and their results (one that tests the executive functioning and one that tests memory) into one final result and then setting a lower or upper limit on a score that can constitute the threshold needed for judicial capacity. In this regard, even if one judge still has a highly executive functioning mind but a decline in memory, or vice-versa, a combination of the tests results would reveal these issues.
CONCLUSION
It is readily clear that federal judges prefer to remain working rather than retire. Congress and the judiciary have enacted several formal mechanisms, such as the Judicial Conduct and Disability Act of 1980, to address the concern of judicial cognitive decline. However, the system still primarily relies on informal mechanisms, such as the Wellness Committees, that depend on the judges own initiative and self-recognition to be effective. While incomplete, the available evidence suggests that informal approaches have not always been successful in identifying and removing judges who suffer from a mental decline. Therefore, confidential yearly cognitive testing should ensure a judge’s mind is capable of the duties of a judge as promulgated in the judicial Canons.
Sam Weiser (‘23) is a Juris Doctor candidate at Michigan State University College of Law. She is a Staff Editor on the Michigan State Law Review. She graduated from Michigan State University with a Bacelor of Art in Criminal Justice (‘17), a Bachelor of Art in Arabic and a minor in Muslim Studies (‘18), and a Master of Science in Law Enforcement Intelligence and Anaylsis (‘19). Her primary focus of interest is in criminal law and wills, trusts, and estates.
[1] See U.S. Const. art. III, § 1 (“The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour [sic]. . . which shall not be diminished during their Continuance in Office.”). While outside the scope of this Essay, it is helpful to understand that the Constitution enumerates Congress the power to “make all Laws which shall be necessary and proper” for executing its other powers and those of the federal government as a whole. See U.S. Const. art. I, § 8, cl. 18; see also, e.g., McCulloch v. Maryland 17 U.S. 316, 342 (1819) (“Congress is authorized to pass all laws ‘necessary and proper’ to carry into execution the powers conferred on it.”).
[2] See, e.g., Deere v. Cullen, 718 F.3d 1124, 1162-63 (9th Cir. 2013) (Fletcher, J., dissenting) (“Some judges stay on too long. They decide cases when they are no longer competent to do so.”); Gregory v. Ashcroft, 501 U.S. 452, 472 (1991) (“It is an unfortunate fact of life that physical and mental capacity sometimes diminish with age. The people may therefore wish to replace some older judges. Voluntary retirement will not always be sufficient.”).
[3] United States v. Washington, 98 F.3d 1159, 1166 (9th Cir. 1996) (Kozinski, J., concurring).
[4] See 2020 Model Code of Judicial Conduct 1.1 (Am. Bar Ass’n 2020) (decreeing that a “judge shall comply with the law, including the Code of Judicial Conduct”); 2020 Model Code of Judicial Conduct 1.2 (Am. Bar Ass’n 2020) (decreeing that a judge should respect and comply with the law and should act at all times in a “manner that promotes public confidence in independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety”); 2020 Model Code of Judicial Conduct 2.2 (decreeing that a “judge shall uphold and apply the law, and shall perform all duties of judicial office fairly and impartially. Comment [1] To ensure impartiality and fairness to all parties, a judge must be objective and open-minded”); Model Code of Judicial Conduct 2.4 (A) & (B) (Am. Bar Ass’n 2020) (decreeing that “(A) A judge shall not be swayed by public clamor or fear of criticism. (B) A judge shall not permit family, social, political, financial, or other interests or relationships to influence the judge’s judicial conduct or judgement”); 2020 Model Code of Judicial Conduct 2.3(B) (Am. Bar Ass’n 2020) (decreeing that a “judge shall not . . . by words or conduct manifest bias or prejudice, or engage in harassment, including but not limited to bias, prejudice, or harassment based upon race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or political affiliation”); 2020 Model Code of Judicial Conduct 2.8(B) (decreeing that a judge “should be patient, dignified, respectful, and courteous to litigants, jurors, witnesses, lawyers, and to others with whom the judge deals in an official capacity”).
[5] The executive function of the mind consists of “control processes responsible for planning, assembling, coordinating, sequencing, and monitoring other cognitive operations,” and exists essentially as a mediator of brain behavior. See Francis X. Shien, Aging Judges, 81 Ohio St. L.J. 235, 250 (2020) (quoting Timothy A. Salthouse, et al., Executive Functioning as a Potential Mediator of Age-related Cognitive Decline in Normal Adults, 132 J. Experimental Psycholo., 566, 566 (2003)).
[6] See Shaheen Nouri, Life Tenure and the Dynamic of Judicial Independence in the Federal System, 5 Stetson J. Advoc. & L. 155, 166 (2018) (stating that data from the Federal Judicial Center “shows that nearly 75% of judges leave the bench because they die”).
[7] See Alexander Hamilton, The Federalist No. 78.
[8] See Hyun Duk Yang et al., History of Alzheimer’s Disease, Nat’l Ctr. for Biotechnology Info. (Dec. 31, 2016) https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6428020/. This negative social stigma can be traced back to the Middle Age, where “mental illnesses such as depression or dementia were regarded as a king of punishment necessarily imposed by God for sins committed . . . and mental symptoms generated in the dementia patients were due to demon-possession, and thus naturally subject to hatred.” See id.
[9] See id. In a survey conducted by the Alzheimer’s Disease International for dementia patients, “24% of respondents hide their history of diagnosis with dementia mainly due to social stigma . . . 40% of respondents answered that they have experienced discrimination due to dementia . . . and 76% of total respondents were aware of a social stigma for dementia.” See id.
[10] What is Dementia, Ctr’s for Disease Control & Prevention (Apr. 5, 2019). https://www.cdc.gov/aging/dementia/index.html.
[11] In 2010, there was an estimated 4.7 million Americans ages sixty-five and older who suffer from Alzheimer’s disease. See Shien supra note 5 at 255.
[12] As Professor Ann M. Murphy noted,
One significant fact about [Alzheimer’s Disease] is that the impaired memory first affects ‘recent events or newly learned information.’ According to the University of California San Francisco’s Memory and Aging Center, ‘[a]s [Alzheimer’s Disease] progresses, details or even the occurrence of recent events may be forgotten. Implicit (or memory for overlearned activities like riding a bike) and semantic memory (fact memory), as well as long-term memory, remain relatively intact early, but decline in these forms of memory eventually develops.’
Ann M. Murphy, Vanishing Point: Alzheimer’s Disease and its Challenges to the Federal Rules of Evidence, 2012 Mich. St. L. Rev. 1245, 1247-48 (quoting Alzheimer’s Disease, UCSF Memory & Aging Center, https://memory.ucsf.edu/dementia/alzheimer-disease (last visited Dec. 12, 2021)).
[13] See What is Dementia, supra note 10. By 2050, there is a projected 13.8 million people who may suffer from Alzheimer’s Disease. See Shien, supra note 5 at 255.
[14] See Shien, supra note 5 at 249 (mentioning that cognitive decline begins specifically “between the ages of fifty and sixty, with exacerbated rates of decline noted for individuals over the age of seventy”).
[15] Alan S. Kaufman & John L. Horn, Age Changes on Tests of Fluid and Crystallized Ability for Women and Men on the Kaufman Adolescent and Adult Intelligence Test (KAIT) at Ages 17-94 Years, 11 Archives Clinical Neuropsychology 97, 97 (1996).
[16] “Fluid intelligence is the capacity for new conceptual learning and problem solving, a general ‘brightness’ and adaptability, relatively independent of education and experience, which can be invested in the particular opportunities for learning encountered by the individuals in accord with his motivations and interests.” 92d Cong. 2d Session, Env’t, Intel., & Scholastic Achievement: A Compilation of Testimony to the Select Comm. on Equal Educ. Opportunity U.S. Senate 84 (Comm. Print 1972); see also Kaufman & Horn, supra note 15.
[17] “Crystallized intelligence . . . is a precipitate out of experience, consisting of actual knowledge and developed intellectual skills.” 92d Cong. 2d Session, supra note 16; Kaufman & Horn, supra note 15.
[18] But see Rebecca Weintraub Brendel, The Boundaries of “Good Behavior” and Judicial Competence: Exploring Responsibilities and Authority Limitations of Cognitive Specialists in the Regulation of Incapacitated Judges, 46 J.L. Med. & Ethics 521, 521 (2018) (finding that “cases in which colleagues and attorneys have concern about a sitting judge’s behavior, and or performance, serve as illustrative examples of the shortcomings of self-regulation within the judiciary”). Individuals may have a strong cognitive reserve because “childhood intelligence and education levels are protective factors against dementia, it seems plausible that judges as a group might have lower incidence rates of mild cognitive impairment and Alzheimer’s disease.” Shien supra note 18 at 257.
[19] See Shien, supra note 5 at 237.
[20] See Act of Apr. 10, 1869, ch. 22, § 5, Pub. L. No. 41-22, 16 Stat. 44, 45 (“[A]ny judge . . . who . . . having attained to the age of seventy years . . . shall . . . receive the same salary which was by law payable to him at the time of his resignation.”). Interestingly, this prompted a fair number of retirements. See Shien, supra note 5 at 260.
[21] See Demography of Article III Judges, 1989-2020, Fed. Jud. Ctr. https://www.fjc.gov/history/exhibits/graphs-and-maps/age-and-experience-judges; see also Shien, supra note 18 at 242 (stating that judges who claim senior status represents nearly 40% of the federal judiciary).
[22] See Shien, supra note 5 at 242 (quoting Frederic Block, Senior Status: An “Active” Senior Judge Corrects Some Common Misunderstandings, 92 Cornell L. Rev. 533, 535 (2007)).
[23] See id. at 261.
[24] See 28 U.S.C. § 351(a) (“Any person alleging that a judge has engaged in conduct prejudicial to the effective and expeditious administration of the business of the courts, or alleging that such judge is unable to discharge all the duties of office by reason of mental . . . disability, may . . . file . . . a complaint.”). It is important to note that “one open question in applying the Judicial Conduct and Disability Act is whether normal, age-related cognitive decline would constitute . . . a . . . mental ‘disability.’” Shien, supra note 5 at 266.
[25] See Shien, supra note 5 at 266. Such actions include: “(1) temporary halting case assignments; (2) private or public censure; (3) certifying the judge’s disability pursuant to 28 U.S.C. §372(b); (4) requesting such judges voluntary retirement; or . . . [t]he council may . . . petition the Judicial Conference to take action, including advising the House of Representatives that impeachment may be warranted.” Id.
[26] See id. at n. 235 (quoting Charles Gardner Geyh, Informal Methods of Judicial Discipline, 142 U. Pa. L. rev. 243, 275 (1993)).
[27] See id. at 273.
[28] See e.g., Gregory v. Ashcroft, 501 U.S. 452, 473 (1991) (holding that the Missouri’s mandatory retirement age of 70 did not violate the Age Discrimination in Employment Act Amendments of 1978, nor the Equal Protection Clause of the Fourteenth Amendment).
[29] See e.g., “Corrected” Brief of Plaintiff-Appellant a2 *26-28, Theile v. Michigan, 891 F.3d 240 (6th Cir. 2018) (no. 17-2275), 2017 WL 6210343 (stating that “[f]or every judge who should be removed due to some age-related disability or problem, there are many qualified judges who should not be removed . . . These arguments for mandatory retirement fail to consider . . . that each person ages differently”).
[30] Compare Laura Mansnerus, Jack B. Weinstein, U.S. Judge with an Activist Streak, is Dead at 99, N.Y. Times (June 15, 2021), https://www.nytimes.com/2021/06/15/nyregion/jack-b-weinstein-dead.html (detailing the successful career of U.S. District Judge Jack Weinstein, who was still writing significant opinions at the age of ninety-eight) with Steve Mills & Todd Lighty, Cook County Judge Who Let Clerk Hear Cases is Deemed ‘Mentally Unable’ to Do Job, Chi. Trib. (Dec. 2, 2016), https://www.chicagotribune.com/news/breaking/ct-cook-county-judge-mentally-unfit-memory-loss-20161202-story.html (telling the story of Judge Valarie Turner, who was forced off the bench at the age of fifty-nine for her erratic behavior and was shortly after diagnosed with Alzheimer’s disease).
[31] See Shien, supra note 5 at 281 [emphasis in original].
[32] See generally Betsy J. Grey, Sex-Based Brain Differences and Emotional Harm, 70 Duke L.J. Online 29 (2021) (describing the overall gender-based differences of the brain).
[33] See Shien, supra note 5 at 257 (mentioning that “multiple interviews with physicians who diagnose dementia suggest that they are regularly (albeit not frequently) contacted by concerned colleagues and friends of judges . . . it is often not the judges themselves who reach out, but someone who is concerned about the judge”).
[34] The description and details of the Cognitive testing and screening for dementia are out of the scope of this Essay. However, to demonstrate the amount of available testing, a few tests that could be administered include: the Mini-Mental State Examination (MMSE), the Montreal Cognitive Assessment (MoCA), Test of Premorbid Functioning (TOPH), Wechsler Adult Intelligence Scale IV (WAIS IV), Wechsler Memory Scale IV (WMS IV), Delis-Kaplan Executive Function System (D-KEFS), Wisconsin Card Sorting Task, Booklet Category Test, California Verbal Learning Test (CVLT), and Validity Indicator Profile. See Shien, supra note 5 at 297-304.
[35] Id. at 297 (quoting R.C. Petersen et al., Practice Parameter: Early Detection of Dementia: Mild Cognitive Impairment (an Evidence-Based Review): Report of the Quality Standards Subcommittee of the American Academy of Neurology, 56 Neurology 1133, 1139-40 (2001)).
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