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9th Cir. Takes on Senile Judges With Awareness Program

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By Casey C. Sullivan, Esq. on November 09, 2015 11:51 AM

It's not just Ruth Bader Ginsburg and Antonin Scalia who are likely to die on the bench. Though those Supreme Court Justices are over 80, they've both steadfastly refused to consider retirement. They've got company. Many federal judges plan on hanging on to that gavel right to the end.

Since federal judges are appointed for life and must be impeached by Congress to be removed, their careers can last well into their twilight years. And while many remain sharp throughout that period, there are also concerns that an aging judiciary will lead to senile judges staying on the bench too long. In response, the Ninth Circuit has adopted a sophisticated senility awareness program to help judges recognize when it might be time to take a break from the bench.

Aging Gracefully in the Ninth?

Almost 25 years ago, Ninth Circuit Judge Barry G. Silverman condemned the circuit's inability to deal with senile judges. Dissenting to a case which affirmed a death penalty issued by a federal judge allegedly suffering dementia, Judge Silverman wrote:

It is an open secret that some judges stay on the bench too long. Formal procedures exist for removing senile judges, but they are rarely employed. Attorneys hesitate to challenge judges they appear before, and judges hesitate to blow the whistle on their colleagues. I am as reluctant as most judges to seek to remove a senile judge or to set aside a decision reached by such a judge. But when a man's life is at stake, I cannot stay silent

The Ninth Circuit's senility awareness program seeks to address that "open secret" directly. According to Sudhin Thanawala, writing for the Associated Press, the Ninth Circuit has a pretty sophisticated senility awareness program:

The circuit court holds regular seminars led by neurological experts to teach its chief judges about the signs of cognitive impairment. It has set up a hotline where court staff and judges can get advice about dealing with signs of senility in colleagues. It has also encouraged judges to undergo cognitive assessments and designate colleagues, friends or family who can intervene if concerns arise about their mental health.

That's a multi-pronged approach designed to identify problems early and address them in a respectful, collegial manner.

Not Without Conflict

Of course, having an awareness program doesn't mean that conflicts won't arise. Thanawala identified two recent instances in the Tenth Circuit, which also has a judicial health program, where complaints addressed potential "mental decline." In one, a judge fell asleep in court. He agreed to reduce his caseload. In another, a law clerk accused a judge of "forgetfulness and erratic, abusive behavior." Psychological screening showed the judge was suffering no mental impairments. (Perhaps he was just a jerk?)

In the Ninth, it seems that most concerns about judges' mental abilities are handled quickly and quietly. Richard Carlton, who runs the circuit's counseling hotline, says that concerns about a judge being impaired are often explained by "some kind of physical condition or some new medication." When the explanation is less simple, the judges are often already transitioning to senior status.

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