Francis X. Shen, Aging Judges, 81 Ohio State L. J. 235 (2020).
Abstract: America's judiciary is aging. The average age of federal judges is sixty-nine years old, older than it has been at any other time in the country's history. The typical reaction to this demographic shift is concern that aging judges will serve past their prime. Scholars have thus offered proposals for mandatory judicial retirement, judicial term limits, and mechanisms for judicial removal. In this Article, I critique such proposals and draw on cognitive neuroscience to argue that rather than forcing their retirement, we should empower aging judges. The central neuroscientific insight is that individual brains age differently. While at the population level, age generally leads to reductions in information processing speed, and for some, serious deficits in memory and decision-making capacity, there is much individual variation. Given individual differences in how aging effects cognitive decline, the current system--which mandates intense health scrutiny when a judge is younger, followed by no formal cognitive evaluation for the rest of the judge's career--can be improved. I argue that we can empower judges by providing them opportunities for confidential, accurate, and thorough cognitive assessments at regular intervals throughout their judicial careers. If carefully developed and implemented so as to avoid politicization and to ensure complete confidentiality of results, individualized judicial cognitive health assessments will allow judges to make more informed decisions about when and how to modify their service on the bench. More individualized assessment will allow the legal system to retain the wisdom of experienced judges, while avoiding the injustice that comes with handing over the courtroom to a judge who is no longer capable of running it.