"Extreme aging in the federal judiciary—and the trouble it causes." Slate Magazine January 18,2011

“Extreme aging in the federal judiciary—and the trouble it causes.” Slate Magazine, January 18, 2011

Part 1 briefly explained the origins of modern day debt slavery in the United States.

Middle class wealth was a phenomena of Twentieth Century America.

It resulted from those  people who performed labor and services being paid a fair split of the profits generated by a manufacturing and services economy.

At some point the wealthy elites (including those which financed governments) focused on the American middle class as a source of revenue and a means by which to gain more power.

Indeed, the wealthy elites and those who represented them in government devised a plan to rob America’s middle class of its wealth in exchange for loans which would be necessary to maintain that class’ lifestyle until its demise was certain to occur.

Government reduced the value of the labor performed by the middle class by exporting jobs overseas to impoverished peoples, who would accept much less than the trade unions had negotiated as being necessary for workers to live fairly in their local communities.

At the same time, the elite’s money lenders ameliorated the effect of the loss of worker’s wealth by making cheap loans available to them for a couple of decades.

This was a small price to pay for these hard money lenders conversion of America’s manufacturing and servicing economy into a debt based economy, that ultimately benefited from the destruction of the independence of America’s middle class by foreclosing on their assets.

Recently, as I noted in Part One of this series a mostly elderly Supreme Court in Henson v Santander Consumer USA unanimously ruled that debt buyers (who often purchase debt for pennies of the dollar) can use unfair and unconscionable debt collection tactics on ordinary Americans to collect monies which may not even be owned to the original creditor.

This assault on the well being of the American people occurred while the “Silent” and “Baby Boomer” generations had those positions of power which enabled them to make debtors of America’s middle class. This allowed the 1% to then make debtors of their offspring in a world now effectively controlled by creditors.

We are now confronted with a situation where the old people of the “Silent” and “Baby Boomer” generations want to stay in power. They do not want to relinquish their control to those generations which are following them. This is unfortunate because the people of these younger generations are fully capable of understanding the moral and spiritual mistakes made by these older generations; mistakes which presently confront our local and regional communities and severely hurt the majority of this nation’s people.

The problem with convincing these the wealthy elites and government officials in the “Silent” and “Baby Boomer” generations that “debt-based economies” are morally and spiritually wrong is the evidence suggests these generations are so self centered, they do not care. Reasonable peoples’ attempts to reach many of these old folks now are often frustrated because the people of these generations are often cognitively impaired.

CBS News reported in 2015: “About half the population between 80 and 89 years old either has dementia or a diagnosed cognitive impairment.” CBS News Watch, The Growing Danger to Elderly Americans, (January 28, 2015). This is not new knowledge. The effects of aging on humans has been commonly known by all of us for some time and has been confirmed by medical research. See e.g. Harada, Caroline N., Marissa C. Natelson Love, and Kristen Triebel. “Normal Cognitive Aging.” Clinics in geriatric medicine 29.4 (2013): 737–752. PMC. Web. 24 May 2017.  

Although it is time for the members of the “Silent” and “Baby Boomer” generations to move on gracefully, they refuse to do so. Unlike, Uncle Ed (who I referred to in the first installment of this series) health care providers from the “Silent” and “Baby Boomer” generations don’t want to retire even though it is likely they will injure persons if they continue to provide poor medical care.

In this regard, the Wall Street Journal reported just a few days ago:

Older physicians who have mild cognitive dysfunction typically don’t realize it, she said, and their colleagues don’t report them. In a paper [“Ensuring Competent Care by Senior Physicians”] published last year in the Journal of Continuing Education in the Health Professions, a group of authors led by an AMA vice president cited studies showing how “increasing years in practice is associated with decreasing knowledge; lower adherence to evidence-based standards of care for diagnosis, prevention and treatment; and worse patient outcomes.”

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Meanwhile, a study published in May in the British Medical Journal that looked at the outcomes of hospitalists—doctors who work at inpatient hospital units—found that patients treated by older hospitalists, over 60, have higher mortality than patients cared for by hospitalists under 40 except for physicians with high patient volumes, where there were no age-related differences in mortality.

Wall Street Journal, “When are Doctors too old to Practice?” (June 25, 2017).

Although mistakes made by cognitively impaired physicians can be fatal, they pale in comparison to the consequences of mistakes made by retired federal judges.

Indeed, many reasonable people (even some in the “Silent” and “Boomer” generations) understand that allowing retired judges between the ages of 75 and 104 decide cases involving issues which may ultimately have a precedential effect is downright scary.

Today, aging and dementia are the flip side of life tenure, with more and more judges staying on the bench into extreme old age. …

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[J]udges of advanced years are clearly at increased risk for trouble with memory and cognition. According to the Alzheimer’s Association, about 13 percent of Americans over 65 have Alzheimer’s and nearly half of those 85 and older develop it or suffer from dementia. The judiciary does not assess the competence of its senior judges. The courts have no formal policy requiring, or even recommending, that judges receive medical checkups or consult with geriatricians. Instead, the institution relies on other judges to monitor colleagues, and, working discreetly behind the scenes, to push out enfeebled judges gently.

Goldstein, Joseph, Slate, “THE OLDEST BENCH EVER, Extreme Aging in the Federal Judiciary” (January 18, 2011.) And the arrogance of federal judges, who chose to retire from office, insisting they can still exercise judicial power under Article III is so perverse as to call into question their competence. See Valencia, Milton J., The Boston Globe, “Senior status’ lets federal judges keep working — for free.” (December 12, 2014) (quoting US Senior District Judge Mark L. Wolf quoted as stating: “I love it [Article III judging]. One of the most appealing things is, if I want to keep working, nobody can make me stop.” Id.) The judge’s observation that nobody can make him stop is problematic because he chose to retire.

Why should a retired judge, who no longer holds office, be allowed to exercise this nation’s judicial power?

While approximately half of the retired federal judges are over 75, many are downright ancient and have been so for some time. Business Insider, “These 13 Oldest Federal Judges — All In Their 90s — Are Still Hearing Cases” (August 5, 2012).

U.S. Const. Art III, section 1 states:

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. 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.

As you can see nowhere in this provision does it say any judges are appointed for life. Judges might tell you that this is what this provision means, but clearly it is not what the Constitution says. Nor does this provision suggest our founders wanted any judge to exercise judicial power after s/he “retired from office, i.e. quit being an Article III federal judge.

Recently, I argued to judges in the United States District Court of the Western District of Washington (four of whom are active and nine of whom are retired) that retired Judge Thomas Zilly, who was working for free under the “Rule of 80”, was not an article III judge within the meaning of the Constitution. Chief Judge Ricardo Martinez response was that Judge Zilly was not retired, only “semi retired”. Specifically, Chief Judge Martinez stated in a footnote:

A simple internet search would have revealed the inaccuracy of Defendant Stafne’s allegations. “Senior status” is a form of semi-retirement for United States federal judges that allows them to receive the full salary of a judge but have the option to take a reduced caseload (although many senior judges choose to maintain a full caseload).

As I pointed out in my motion to reconsider his order allowing retired Judge Zilly to continue acting as an Article III judge, the federal statute authorizing former Judge Zilly an annuity pension is a retirement statute.

28 U.S.C. § 371 provides in pertinent part:

Any justice or judge of the United States appointed to hold office during good behavior may retire from the office after attaining the age and meeting the service requirements, whether continuous or otherwise, of subsection (c) and shall, during the remainder of his lifetime, receive an annuity equal to the salary he was receiving at the time he retired.

Because Judge Martinez did not identify the internet site he was referring to, we do know what he means by semi-retirement. However, under the statutory system Congress created “senior” (i.e. retired) judges are receiving a pension paid through annuities as part of their retirement, not compensation for volunteering to exercise judicial power.

Most people who can’t afford a lawyer (over 80% of us) don’t want a retired, volunteer judge who had strong ties with the law firm appearing against them to exercise judicial power over their cases. Nor should they. As Thomas Jefferson observed: “Our Judges are as honest as other men, and not more so.”

We all know in 21st Century America, there is no such thing as a “free lunch” or a “free judge”.

There is no historical support for the proposition the Constitution allows judges who voluntarily retired from office to impose themselves on litigants as Article III judges once they voluntarily resign their office.

Article III’s “good behavior” and “compensation” clauses for judges grew out of those affronts by the King to the Colonist’s judicial system. In the Declaration of Independence the thirteen states complained: “He [King George III] has made judges dependent on his will alone, for the tenure of their offices, and the amount and payment of their salaries.” Declaration of Independence. Further, our founders complained the King has erected a multitude of New Offices for judging, “and sent hither swarms of Officers to harass our people and eat out their substance.” Id.

This concern about judges’ tenure and compensation while in office was also reflected by those persons who authored and ratified the United States Constitution in 1789. To suggest that our founders intended the government could extend the tenure of judges to remain in office after they had resigned (retired) is ludicrous.

Indeed, the first retirement plan in the United States was implemented almost a century after the United States Constitution was ratified. See, Georgetown University Law Center, “A Timeline of the Evolution of Retirement in the United States” (2010). How could our founders have contemplated judges could remain in office following retirement when no such system existed back then?

Moreover, at the time the Constitution was ratified the average life expectancy was less than 40 years., Life and Death in the Liberty Era.

The Federalist Papers related to the judicial department establish the purpose of the “compensation clause” was to attract good judges and keep them independent from the manipulation of the other branches of government while they were in office. Hamilton, Alexander,The Federalist Papers No. 78, 79, and 80. No one ever considered Congress could allow old judges, who had retired, to exercise judicial power over ordinary citizens when such judges had voluntarily resigned their tenure in office.

Just as Article III, section 1 does not allow the other branches of government to reduce a judges tenure in office; it does not allow the government to increase that tenure after a judge has retired and is so likely to be cognitively or morally challenged.

For those of you who are interested in reviewing the arguments made to the United States District Court for the Western District of Washington, you can access that briefing here.

The point of this second installment is that we must encourage the “Silent” and “Boomer” generations to move on so that the world can evolve spiritually in ways most of these elderly judges cannot appreciate.

To give the next generations the responsibility and authority which our founders anticipated would be the course of history, we must require retired judges (who unlawfully comprise almost half of the federal judiciary) be banned from the federal judgeships they have already retired from.  And we, the people, should make clear forcing retired judges from office is not a request, but a constitutional requirement. See N. Pipeline Const. Co. v Marathon Pipeline Co., 458 US 50, 58-59 (1982). (Congress delegation of authority in 28 U. S. C. § 1471 to the Bankruptcy Judges to try cases which are otherwise relegated under the Constitution to Article III judges was determined to be an unconstitutional delegation of power which violated Article III, section one.)

Our founders never contemplated that we, the people, should have to appear before likely cognitively challenged retired judges who no longer are willing to provide us with reasoned explanations for their decisions, but instead spit out only dictatorial “minute orders” as if they were feudal royalty. Removing such judicial tyrants from our courts will go a long way to restoring the Constitutional separation of powers our founders created to ensure a fair and proper evolution of government and civil society generally.

Gen X, Y, the Millennials, and all of us deserve federal judges who work full time for a salary which they earn.

In the Third Installment of this series we will discuss those changes in our present governmental make up which are necessary to comply with America’s Constitution to insure “justice” (not debt slavery) remains the goal of the United States government and civil society.

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About Scott . Stafne

Mr. Stafne is very experienced in property rights, including banking wrongs and foreclosure prevention; Constitutional Law (under the United States and Washington State Constitution); Appellate law; land use law; personal injury law. Scott has recently become a media focal point as his win record of foreclosure defense cases against the largest financial institutions, servicers, trustees as well as MERS have blazed the trail toward ending the foreclosure crisis and representing the rights of the homeowner above the profits and secret dealings of corporations.   Scott sees law as a foundation for establishing a system of twenty first century liberties for the people; and for removing that corruption of power within our government which makes the achievement of real purpose beholden to only money.   Scott Stafne has been an attorney since graduating from the University of Iowa in 1974. He worked for a large law firm in Indianapolis (Baker & Daniels) for two years. Thereafter, he moved to Seattle Washington in order to obtain a Masters of Law degree from the University of Washington, which he obtained in 1977. Scott practiced law while going to graduate school and has practiced ever since.   This is a personal blog, and does not constitute legal advice in any form, and is not necessarily reflective of the policies or opinions of Stafne Law Firm. Visit the Law Firm: Visit the Google+ Page: Visit the Facebook Page:   *Web Developer: David J. Posel
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