By Scott E. Stafne


"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

Slate Magazine, January 18, 2011

Middle class wealth in the United States 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 the United States’ 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, wealthy elites and those who represented them in the United States government devised a plan to rob America’s middle class of its wealth in exchange for cheap 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 for  several 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% (as they are aptly referred to nowadays) to then make debtors of their offspring in a world now effectively controlled by money lenders and debt buyers.

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 jeopardize the safety and welfare of the vast majority of the people who live in the United States.

The problem with convincing 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 in a June 2017 editorial entitled “When are Doctors too Old”:

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.” …

A study published in May, 2017 in the British Medical Journal 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.

Although mistakes made by cognitively impaired physicians can be fatal, they pale in comparison to the consequences of mistakes made by retired federal judges, who are euphemistically referred to as “federal senior judges”.

Most reasonable people (even some in the “Silent” and “Boomer” generations) understand that allowing retired senior judges between the ages of 75 and 104 to volunteer to decide only those cases they pick and chose to “work on” is downright scary and likely violates the Constitution commitment to people to provide independent judges.

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

[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 senior judge, who is not a principle or inferior officer under the Appointments Clause of the U.S. Constitution, or even an employee at all (the judicial department calls them volunteers) be allowed to exercise the United States judicial power without the consent of the parties?

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 (who obviously are biased in favor of such an interpretation) 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 active 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 is over 80 years old and 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 litigating 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. Senior judges, although not officers or employees of the United States, would surely be among the swarms of officials our founders wanted to free us from.

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 without an amendment to the Constitution extend the tenure of judges to remain in office after they had resigned (retired) the office to which they were appointed to 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 (any more than King George III) could allow old judges, who had resigned, to exercise judicial power over ordinary citizens.

Just as Article III, section 1 does not allow the other branches of government to reduce a judge’s tenure in office; it does not allow the government in violation of the Separation of Powers to increase that tenure after a judge has retired and is  likely to be cognitively or emotionally challenged. Remember the primary goal of our founders was to obtain good, competent, and independent judges for the people, not to create exorbitant benefits for judges that no one else in the world has.

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 who have acted as demigods for so long 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 judges exercising judicial power) 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.

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. And in the Fourth Installment we will consider legislative proposal which can begin to end the debt based economy which has been imposed on the people.

(This article was originally published with slight differences in on June 29, 2017)

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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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