Federal Judges, New York Times, Old People

Judge of the Day: Wesley Brown -- He's 103!

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What’s the judge wearing underneath his robe? In the case of Judge Wesley E. Brown of the District of Kansas, the oldest living federal judge, the smart money is on these.

Judge Brown, the subject of a front-page profile in the New York Times (the news cycle is a little slow right now), is a whopping 103 years old. He was born on June 22, 1907. The president at the time was Roosevelt — Teddy, not Franklin. Judge Brown was appointed to the district court by President John F. Kennedy, and he’s one of just four JFK appointments still on the bench.

Despite his (extremely) advanced age, Judge Brown still regularly takes the bench to hear cases. And, impressively, he does so with his eyes open….

The New York Times profile — written by A.G. Sulzberger, head of the newspaper’s Kansas City bureau, and scion of the Sulzberger family that controls the NYT — begins as follows:

Judge Wesley E. Brown’s mere presence in his courtroom is seen as something of a daily miracle. His diminished frame is nearly lost behind the bench. A tube under his nose feeds him oxygen during hearings. And he warns lawyers preparing for lengthy court battles that he may not live to see the cases to completion, adding the old saying, “At this age, I’m not even buying green bananas.”

Or, to his credit, dating Anna Nicole Smith. (Hmm… too soon?)

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At 103, Judge Brown, of the United States District Court here, is old enough to have been unusually old when he enlisted during World War II. He is old enough to have witnessed a former law clerk’s appointment to serve beside him as a district judge — and, almost two decades later, the former clerk’s move to senior status. Judge Brown is so old, in fact, that in less than a year, should he survive, he will become the oldest practicing federal judge in the history of the United States.

In case you’re wondering, the existing record was set by Judge Joseph W. Woodrough. Judge Woodrough served on the Eighth Circuit until 1977, when he died at the ripe old age of 104.

Sulzberger uses Judge Brown as a jumping-off point for discussion of super-old jurists, noting that because the Constitution allows federal judges to remain on the bench “during good behavior,” in practical terms they’ve been able to stay as long as they want. Thanks to increasing life expectancy, judges are getting older and older. Fortunately for the federal courts, many of these aged judges are still actively working, even if they’ve entered into the semiretired state known as “senior status.”

When a federal judge is eligible for senior status is governed by the “Rule of 80.” Judgepedia explains:

[The Rule of 80] is the shorthand method for the age and service requirement for a judge to assume senior status, as set forth in Title 28 of the US. Code, Section 371(c).

Beginning at age 65, a judge may retire at his or her current salary or take senior status after performing 15 years of active service as an Article III or Federal Appeals judge (65+15 = 80). A sliding scale of increasing age and decreasing service results in eligibility for retirement compensation at age 70 with a minimum of 10 years of service (70+10=80). Senior judges, who essentially provide volunteer service to the courts, typically handle about 15 percent of the federal courts’ workload annually.

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Being able to retire at your current salary is a pretty nice perk. No wonder Justice Sotomayor hasn’t saved much for retirement.

The Times piece goes on to note the concerns of some critics that very old judges can’t properly discharge their duties. Perhaps some of you have had experience appearing before elderly judges who fall asleep while on the bench.

It appears, however, that this is not the case with Judge Brown (although query whether any source would have said otherwise to the New York Times, which would have been rude):

A few years ago, when they noticed that while speaking in court Judge Brown would occasionally pause, sometimes for what seemed like minutes, lawyers, clerks and fellow judges worried that they were witnessing the beginning of a decline that would make him incapable of doing his job. But he began using an oxygen tube in the courtroom, and the pauses disappeared. (During an hourlong interview in his chambers, he paused briefly just once while trying to recall the last name of Earl Warren, the former chief justice of the United States, but he was without his oxygen tank.)

In Judge Brown’s defense, Harriet Miers had trouble with Warren too.

By the way, maybe we all need our own personal oxygen tanks. I find my memory getting worse and worse. I blame the internet. Maybe someday there will be a class action lawsuit against Google for making us stupid.

Don’t count on Judge Brown to join such a lawsuit:

The consensus is that Judge Brown is still sharp and capable, though colleagues acknowledge that his appearance can be startling. “Physically he’s changed a lot, but mentally I haven’t noticed any diminution of his ability,” said Judge Monti L. Belot, the former law clerk who now has his own courtroom in the same building, “Which has to be pretty unique.”

Reading between the lines, it sounds like Judge Belot thinks his former boss looks like the Crypt Keeper. But, in fairness to Judge Brown, the man is a centenarian. All the Malin + Goetz in the world won’t keep your skin soft and supple at 103.

Although Judge Brown continues to hear cases, he has (understandably) trimmed his caseload:

He still hears a full load of criminal cases, but now he takes fewer civil cases, and he no longer handles any that may result in lengthy trials. He spreads his hearings throughout the week to keep his strength up, and he no longer takes the stairs to his fourth-floor chambers.

Well, at least he’s not in a motorized scooter — like one former judge who’s just a fraction of his age.

How do older judges make sure they are still capable of wielding the gavel? Judge Brown has adopted this measure:

Judge Brown has taken the step of asking a few trusted colleagues, including his longtime law clerk Mike Lahey, to tell him when they believe he is no longer capable of performing his job. “And,” the judge said, “I hope when that day comes I go out feet first.”

Odds are that Judge Brown will remain on the bench until he passes away. Given the highly respectful culture of the federal judiciary, it’s doubtful that Judge Brown’s current law clerk — or even Judge Belot, a former law clerk to Judge Brown who is now an Article III judge himself — would ever tell Judge Brown that he’s losing it. That’s just not how you talk to a federal judge who is senior to you.

(Gentlemen: if your wife or girlfriend, scrutinizing herself in her underwear in a full-length mirror, asks you if she looks fat, the correct answer is NO. If she asks you a second time, the answer is NO. And if she asks you a third time, imploring you to “be honest,” the answer is still NO.)

So we’re guessing that Judge Brown will leave the courthouse, as he puts it, “feet first.” And hopefully that day won’t come for a long, long time.

Judge Brown — you probably don’t use the internet much, but perhaps your law clerk can read this to you — we thank you for your many years of dedicated service to the federal judiciary and to the nation. We wish you the best of luck in eclipsing the record of Judge Woodrough to become the oldest sitting federal judge ever!

At 103, a Judge Has One Caveat: No Lengthy Trials [New York Times]
Wesley E. Brown [Wikipedia]

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