The U.S. is inching toward a gerontocracy, a society in which elderly people rule

When Democrats decided after President Joe Biden’s disastrous debate performance that he was no longer fit to serve at the top of the ticket, a multifaceted pressure campaign was able to convince him to step aside, reported NBC News.

But federal judges, as well as Supreme Court justices, have lifetime appointments and there is no easy process for easing them aside.

At the age of 97, Judge Pauline Newman is the oldest full-time federal judge on the bench, but despite concerns about her ability to do the job, her colleagues are struggling to get rid of her.

With people generally living longer, a lifetime appointment can now last many decades. The average age of a federal judge is 69, according to a recent study, and there is no clean way to force someone to step down.

“That’s a feature, not a bug,” said Greg Dolin, a former Newman law clerk who is now working as her lawyer. “There’s no way to get rid of a judge, but I don’t think that’s something to amend. That’s something to celebrate.”

On the other hand, some judges have no wish to stay on the job for life out of fear they may lose their faculties, and courts have put measures in place to assist them.

“The judges are engaged in very challenging work. We have a responsibility to the public to try to be at our best both mentally and physically as we perform and discharge those duties that can have very wide impact,” said Judge Phyllis Hamilton, a long-serving federal district judge in Northern California.

Acute problem

Pressure on judges to retire often becomes public only when it concerns a Supreme Court justice. When President Barack Obama was in office, liberal Justice Ruth Bader Ginsburg rebuffed calls from liberals that she step down. At the time, she was in her early 80s and had faced multiple bouts of cancer.

She died in September 2020 at the age of 87, giving then-President Donald Trump the chance to replace her with staunch conservative Justice Amy Coney Barrett, a huge change that shifted the court to its current 6-3 conservative majority.

While the Supreme Court attracts the most attention, “the problem is probably even more acute” on lower courts because of the sheer number of judges, said Gabe Roth, executive director of Fix the Court, a judiciary watchdog.

As of last year, there were 870 active federal judges, including the nine Supreme Court justices and judges serving on the 13 appeals courts and the 94 district courts, according to the Administrative Office of the U.S. Courts.

Of those, 70 district judges and 34 appeals court judges are eligible to take senior status, whereby judges take on a lesser role but maintain their title, or retire on full pay, according to an NBC News analysis of data on judges from the Federal Judicial Center, the research arm of the judiciary.

It is not just in presidential races and the judiciary where advancing age is a factor. The average age of members of Congress has also risen, reaching almost 60 for members of the House of Representatives and 64 for senators, according to the Congressional Research Service. Last year, the focus fell on Sen. Dianne Feinstein, D-Calif., who showed signs of cognitive decline while in office before dying in September at the age of 90.

It has led some to claim that the United States is inching toward becoming a gerontocracy, a society in which elderly people are in charge.

“I think there’s something special for old people who, once they’ve enjoyed a lot of power, fear irrelevance and neglect if they give it up — you know, they’ll be less important, and they’ll be marginal,” said Samuel Moyn, a law and history professor at Yale University who recently wrote an article on the issue. “I think there’s a gerontocratic crisis across all branches of government and frankly many other places too.”

In the judiciary, Newman is just one of 14 judges still listed as actively hearing cases on a full-time basis and who are older than Biden, according to the NBC News survey.

By coincidence, all three of the oldest active judges sit on the same appeals court. Joining Newman are Judge Alan Lourie, 89, and Judge Timothy Dyk, 87.

At the district court level, Judge David Hurd of the Northern District of New York, who turned 87 this year, is the oldest active judge, according to the Federal Judicial Center data. He was appointed by President Bill Clinton in 1999 and recently announced plans to take senior status. He had previously rescinded a pledge to step aside.

The second oldest is Massachusetts-based Judge Nathaniel Gorton, born in 1938, who was appointed by Republican President George H.W. Bush in 1992. (The Federal Judicial Center database includes year of birth but not specific dates.)

The judges all declined interview requests.

Hundreds more aging judges are still in office but have taken senior status. The judiciary does not have exact numbers on how many senior judges are still actively working on cases, but a 2023 judicial business report said there are 520 senior judges who have staff assigned to them, indicating that they are conducting at least some judicial duties.

These so-called “active” judges are the ones who get more scrutiny about stepping down, or refusing to do so, because when they announce their retirement, the president gets to pick a much younger replacement.

Leaving active status does not necessitate giving up the judicial salary. Under judiciary rules, any judge can retire or take senior status at age 65, which means they still get paid as long as they have served for 15 years.

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President Biden pushes for SCOTUS term limits and ethics code

 President Joe Biden is unveiling a long-awaited proposal for changes at the U.S. Supreme Court, calling on Congress to establish term limits and an ethics code for the court’s nine justices, reported The Associated Press. He also is pressing lawmakers to ratify a constitutional amendment that would limit presidential immunity.

The White House on Monday detailed the contours of Biden’s court proposal, one that appears to have little chance of being approved by a closely divided Congress with just 99 days to go before Election Day.

Still, Democrats hope it will help to focus voters as they consider their choices in a tight election. The likely Democratic nominee, Vice President Kamala Harris, has sought to frame her race against Republican former President Donald Trump as “a choice between freedom and chaos.”

The White House is looking to tap into the growing outrage among Democrats about the court, which has a 6-3 conservative majority, issuing opinions that overturned landmark decisions on abortion rights and federal regulatory powers that stood for decades.

Liberals also have expressed dismay over revelations about what they say are questionable relationships and decisions by some members of the conservative wing of the court that suggest their impartiality is compromised.

“I have great respect for our institutions and separation of powers,” Biden argues in a Washington Post op-ed set to be published Monday. “What is happening now is not normal, and it undermines the public’s confidence in the court’s decisions, including those impacting personal freedoms. We now stand in a breach.”

The president planned to speak about his proposal later Monday during an address at the LBJ Presidential Library in Austin, Texas, to mark the 60th anniversary of the Civil Rights Act.

Biden is calling for doing away with lifetime appointments to the court. He says Congress should pass legislation to establish a system in which the sitting president would appoint a justice every two years to spend 18 years in service on the court. He argues term limits would help ensure that court membership changes with some regularity and adds a measure of predictability to the nomination process.

He also wants Congress to pass legislation establishing a code of ethics for justices that would require justices to disclose gifts, refrain from public political activity and recuse themselves from cases in which they or their spouses have financial or other conflicts of interest.

Biden also is calling on Congress to pass a constitutional amendment reversing the Supreme Court’s recent landmark immunity ruling that determined former presidents have broad immunity from prosecution.

The decision extended the delay in the Washington criminal case against Trump on charges he plotted to overturn his 2020 presidential election loss and all but ended prospects the former president could be tried before the November election.

The last time Congress ratified an amendment to the Constitution was 32 years ago. The 27th Amendment, ratified in 1992, states that Congress can pass a bill changing the pay for members of the House and Senate, but such a change can’t take effect until after the next November elections are held for the House.

Trump has decried court reform as a desperate attempt by Democrats to “Play the Ref.”

“The Democrats are attempting to interfere in the Presidential Election, and destroy our Justice System, by attacking their Political Opponent, ME, and our Honorable Supreme Court. We have to fight for our Fair and Independent Courts, and protect our Country,” Trump posted on his Truth Social site earlier this month.

There have been increasing questions surrounding the ethics of the court after revelations about some of the justices, including that Clarence Thomas accepted luxury trips from a GOP megadonor.

Justice Sonia Sotomayor, who was appointed during the Obama administration, has faced scrutiny after it surfaced that her staff often prodded public institutions that hosted her to buy copies of her memoir or children’s books.

Justice Samuel Alito rejected calls to step aside from Supreme Court cases involving Trump and Jan. 6 defendants despite a flap over provocative flags displayed at his home that some believe suggested sympathy to people facing charges over storming the U.S. Capitol to keep Trump in power. Alito says the flags were displayed by his wife.

Trump, at the time, congratulated Alito on his social media site for “showing the INTELLIGENCE, COURAGE, and ‘GUTS’” in refusing to step aside. “All U.S. Judges, Justices, and Leaders should have such GRIT.”

Democrats say the Biden effort will help put a bright spotlight on recent high court decisions, including the 2022 ruling stripping away women’s constitutional protections for abortion, by the conservative-majority court that includes three justices appointed by Trump.

Democratic Sen. Elizabeth Warren of Massachusetts said in a Sunday interview with CNN’s “State of the Union” that Biden’s reform push is about reminding Americans that “when they vote in November, the Supreme Court is on the ballot.”

She added: “That is a good reason to vote for Kamala Harris and to vote for Democrats in both the Senate and the House.”

Republican Sen. Lindsey Graham of South Carolina pushed back that Democrats didn’t complain when a more liberal-leaning court “was pumping out opinions they liked.”

“Only when we brought constitutional balance back from having a conservative court was the court a threat to the country,” Graham said Sunday on CBS’ “Face the Nation.” “What’s been a threat to the country is an out-of-control liberal court issuing opinions that basically take over every phase of American life based on nine people’s judgment.”

The announcement marks a remarkable evolution for Biden, who as a candidate had been wary of calls to reform the high court. But over the course of his presidency, he has become increasingly vocal about his belief that the court has abandoned mainstream constitutional interpretation.

Last week, he announced during an Oval Office speech that he would pursue Supreme Court reform during his final months in office, calling it “critical to our democracy.”

Harris, in her unsuccessful bid for the 2020 Democratic presidential nomination, had expressed being open to a conversation about expanding the nine-member court. The proposals unveiled on Monday do not include such an effort, which is something Biden as a candidate viewed skeptically.

As a vice presidential candidate, Harris notably dodged questions about her earlier stance on the issue during her October 2020 debate with Vice President Mike Pence.

The Harris campaign and aides to the vice president did not respond to queries about Harris’ involvement in shaping the Biden proposal and whether she would pursue any other court reform efforts should she be elected.

The White House in a statement said, “Biden and Vice President Harris look forward to working with Congress and empowering the American people to prevent the abuse of Presidential power, restore faith in the Supreme Court, and strengthen the guardrails of democracy.”

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