Saturday, November 6, 2010

"If you don't mind, it doesn't matter."

Our Western society has a problem with elders. It seems to reject the wisdom of years and the experience of the aged. It is always looking for the next best new thing while tossing out the old. Younger adults portray more competence than their older counterparts - and they believe it. The Western culture is individualistic - my car, my job, my self. The Eastern culture places a heavy weight the experience of their elders. The Eastern culture is personified - our family, our country, our home. I believe our culture does us a disservice by extinguishing the effect of our elders.

Mark Twain remarked one time, "Age is an issue of mind over matter. If you don't mind, it doesn't matter." The November issue of "AARP Bulletin" printed a mini-article entitled, "No Verdict on Retirement for This Judge." The write up describes the oldest sitting judge, the Honorable Wesley E. Brown of the U.S. District Court for the District of Kansas, as "sharp as ever." Judge Brown just turned 103 years this past June. He has been a judge for the last 48 years. His clerk has been with him for the last 23 years. (When I interned with the Honorable Charles E. Poston, his practice was to cut the clerks loose every year so he could train them into valuable lawyers. I wonder who is more the judge at this point: Judge Brown or his clerk.) His closest competitor is the Honorable Dan Russell of the Southern District of Mississippi - age 97.

Can judges, at that point in their life, still adequately adjudicate? Good ol' Ben Franklin said, "Life's tragedy is that we get old too soon and wise too late." Judges Brown and Russell have had a few years to get wise.

Twenty years ago, John Ashcroft, then Governor of Missouri, took a case to the Supreme Court that paints a delicious picture of this debate. Gregory v. Ashcroft, 501 U.S. 452 (1991). The Missouri Constitution was amended to require Missouri judges to retire at age 70. The Governor wondered if judges beyond the age of 70 could properly administer justice. This question reached the Supreme Court and the final decision was rendered on June 20, 1991. The Justices rendered a 7-2 decision ALLOWING the limit on judges and found it was not age discrimination. Can you spot the two judges that dissented based on their ages? The judges, listed by seniority (on the court, not age) were the following ages AT THE TIME of the opinion:

Chief Justice William Rehnquist, born 1924, age 66 - majority
Byron White, born 1917, age 74 - majority
Thurgood Marshall (the first African-American justice), born 1908, age 82 - dissent
Harry Blackmun, born 1902, age 88 - dissent
John Paul Stevens, born 1920, age 71 - majority
Sandra Day O'Connor, born 1930, age 61 - delivered the majority opinion
Antonin Scalia, born 1936, age 54, majority
David Souter (was just appointed during the Court's term), born 1939, age 51 - majority

The Court's reasoning was based on very clever arguments by the Governor: 1) Judges are not "employees" and do not fall under the Age Discrimination in Employment Act (ADEA) classification and therefore cannot be subject to discrimination, and 2) the Fourteenth Amendment does not give them equal protection (meaning the State of Missouri is a sovereign that can make that law).

Back to our Senior (citizen) judges: Brown and Russell. These judges were 84 and 78 at the time that opinion was handed down. And they've been on the Federal bench ever since. I do not discredit these judges. My father is 76 and his mind may be sharper now than I have known it in the past. Even though his body tells another story, his mind is as agile as a 30 year old.

However, there is a point that our aged friends may be on the back end of competence or sound reasoning. For instance, all the Supreme Court Justices under 80 voted the same way. Even those in their 70s saw the law the same. This case even brought ideologies together: Stevens and Scalia, Souter and Rehnquist. I do not think this opinion was based on ideology but personal flavor. Which may give some introspection into why Marshall and Blackmun dissented. Now, do not get me wrong, not ALL 80 year olds are on the back end. Not all 90 year olds are. But it may be worth it to judge each judge on an individual basis, allowing for the fact that too much experience can be detrimental.


  1. One of the things I like about this article is, it tells me something I didn't know. It shows great writing ability and held my interest. Good job! Keep 'em comin'.

  2. These posts give evidence of your broad range of knowledge and interests. And they reveal the masterful development of your writing style. I applaud your ability and willingness to put your opinions and positions out for scrutiny and feedback.

  3. I generally agree that our elders ought to be respected, even revered for their experience and expertise. (Remember the article that claimed Strom Thurmond was the rightful President, because he was the only one who met age requirements under a "living, breathing" Constitution?)

    However, I think the case with Ashcroft was rightfully decided for a few reasons. First, law wasn't on their side. Second, I think all elected officials, especially judges, should have to demonstrate why they deserve to be retained. Also, some older judges have become so entrenched in the political establishment that they'll never be removed from office--removing an essential element (accountability) from their job. Finally, there are some older judges and officials (think Justice Stevens, Sens. Byrd and Thurmond) who are "past their prime" and really just fill up a seat.

    But all my rationale doesn't disprove your theory. You're right. The system needs to be changed to protect good, elderly, spry judges.