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July 06, 2017

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Derek Tokaz

I can see why the discussion may not have been terribly productive. The two positions, at least as represented in your first paragraph, are not in fact at odds with each other. An age limit does nothing to diminish the independence of judges.

Anon Prof

I come down mostly on Holmes' side, and although I practiced for only seven years I did see new judges improve. (I do appreciate the irony of my answering this question based on experience).

I'd like to push back on the implied assumption that a trial judge's substantive improvement is merely a function of learning to avoid reversal. There is some of that going on, but in other cases, judges sometimes simply don't know an obscure rule until they experience being wrong. A judge finds a declarant "unavailable" under FRE 804(a)(2) despite not "ordering" the witness to answer. The judge never makes that mistake again. This can be attributed to an experiential accretion of knowledge.

Also, pro-Government, gung-ho new judges learn that incarcerating every defendant often leads to more, not less, recidivism. The low-level first-time offender leaves prison now unemployed and unemployable, leading to encore appearances on the docket. Experience pushes the judge to a more nuanced understanding of the impact of punishment.

I could go on. The point is that there's a reason why citizens want judges who come to the bench with more experience. Not only do they likely know the law better (perhaps through pure logic), but they also understand how humans react to the imposition of law and make decisions accordingly.

Barry

Seconding Derek, with the caveat that *implementing* an ge limit at any given point would be political.

Derek Tokaz

Barry,

I think it could be implemented in a pretty non-political way. For instance, it only applies to judges appointed after 2025, as opposed to say, an outgoing party imposing the limit on an incoming administration from the opposite party... (for some reason this sounds familiar).

It'd also make sense to have it be an age or a minimum number of years, whichever comes later. So, after having reached 80 years and also having served for 7. I don't know how many judges get appointed that late in life, but I don't see why we have to automatically disqualify them.

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