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Are Old Judges Bad or Do Bad Judges Just Get Old?

By Brian Harris

By Anthony S. Volpe
Special to the Legal

There has been some interest of late in debating whether older judges, especially those seniors that have passed age 80, are bad judges.  Much of the debate focuses on the issues of physical limitations that come with age, such as hearing loss and decrease in stamina, and cognitive limitations, such as lapses in memory, intolerance for changes in the process, and lack of attention to details. All of the above are concerns, but do they necessarily make an older judge bad?

When a judge no longer has the physical or mental capacity to act judicially, there should certainly be attention drawn to the matter and the bar should make the respective chief judge aware of the issues in a discrete non-public manner.  However, every ill-tempered outbust, every poorly reasoned decision or opinion, every failure to recognize a change in the case law, every act of perceived laziness or intellectual shortcoming is not necessarily a manifestation of diminished capacity as a result of age. Judges, like the general population, have different personalities and work habits that may have little or nothing to do with their age.

Something tells me that many of the judges looking down from the bench to survey their courtrooms may feel that everything written above likewise applies to the lawyers who appear before them. Since the bench is most generally composed of individuals from that surveyed group in the courtroom, it is likely that some of the least among them may make it to the bench for reasons unrelated to intellectual brilliance, perfect temperament or industrious work habits. Upon taking the bench, some surprisly become more dedicated and better judges than many expected. Other remain what they were to become mediocre judges, and some regress, for whatever reason, into bad judges. 

While, like the general population, there are some who slip due to age,  I suspect the average is not greater among judges than the general population. In our society at large, age is become less of a limiting factor in just about everything. And, if you believe the argument that keeping mentally active helps to delay the mind?s decay, judges who really have put the effort into their prior work are probably stalling the onset of decline.

This is not intended to be a defense of bad judges of any age; rather, it expresses a personal belief that in most cases old, bad judges are really just bad judges who got old.

Anthony S. Volpe is a founding partner of Volpe and Koenig. He can be reached at TVolpe@volpe-koenig.com.

Full post as published by The Legal Intelligencer Blog on January 24, 2011 (boomark / email).