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We need to add an able-to-perform-the-duties test to continuing to be a federal judge

Posted by John T. Reed on

RBG’s motivation seems to me to be partisan, not selfish. Also, old people, like young athletes nearing the end of their careers, are reluctant to retire and generally in denial.

Some states requires seniors to start taking driving tests more frequen
tly after a certain age. That makes common sense. There should be some equivalent for all appointed-for-life federal judges.

The problem is such a test would be unconstitutional. Article III says,

“The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.”

The life tenure comes from the phrase “during good behavior.” In fact, the standard needs to be during good behavior AND being able to perform the duties. The latter phrase echoes the XXV Amendment which relates to removing the President when he or she is “unable to discharge the powers and duties of his office.”

We have similar rules for pilots, for good reason.

Coming up with a test or series of tests that would remove a federal judge would be fraught with controversy and would instantly be abused by the party controlling the White House if it were not objective enough.

I see no chance of such an amendment now. Democrat states would simply see it as an effort to get rid of RBG. What is probably necessary to build consensus is a notorious actual abuse by a past-his-or-her-expiration-date federal judge. I expect the clerks and other staff of a justice or judge who was unable to perform the duties might conspire to conceal that fact like Woodrow Wilson’s wife and doctor did after that president had a series of strokes.

RBG reportedly cannot stay awake for oral arguments. That strikes me as disqualifying. If oral argument is necessary, all the justices should be able to stay awake for it. If it is not necessary, stop holding it. Sleeping Justices harm the nation’s confidence in the Court. And inability to stay awake during oral arguments is by definition being “unable to discharge the powers and duties of [the] office.”

RBG may become the notorious abuser of the “good behavior” clause and create a consensus for the additional “unable to perform” test.

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