Guilty or Not Guilty: I Don’t Remember

Michael Trahan

Intro/American Government II
POLS 2302-09
James Nelson
February 26, 2014 Who do you want deciding Supreme Court Cases? The forefathers of the U.S. Constitution, under great deliberation, created the foundation for which the country would be governed. Article II, Section 2 of the Constitution reads “[the President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint … Judges of the supreme Court… and which shall be established by Law”. Article III Section 1 distinguishes the term in which they will hold office. These are considered enumerated powers given to the federal government that are specifically listed in the Constitution. “[D]uring good Behaviour,” is interpreted to mean for life tenure to these appointed positions (The Constitution of the United States). Therefore, tenure given to federal judges results from the implied powers given to the federal government that are derived from the enumerated powers and necessary and proper clause of the Constitution. Hence it can, and should be, amended or modified without actual deviation from the Constitution. The intended purpose of the founders of the Constitution was to separate the judicial branch of government from encroachment by the other branches. This was accomplished by designating a life tenure appointment to these judicial positions in the government system. However, the life expectancy of an American was considerably different when the Constitution was drafted than it is today. During the early 1700’s the average life expectancy of an American at the age of 20 was approximately 57 compared to 76 in 2000. As well as during the 1700’s a 40 year old had the life expectancy of 64 compared to 78 in 2000 (Mapping History). That is an average of approximately 17 years. Although the founders of the Constitution did expect these individuals to reside in office until death or impeachment for “non-good behavior”, they were not knowledgeable of the illnesses or deterioration that came with the natural aging process in these later years of life. Illnesses that come with the aging process can affect a judge’s ability to make rational decisions on the bench. “Dementia is a gradual decline of how the brain functions. It is incurable, and slowly interferes with a person's ability to carry out the normal tasks of daily living. Alzheimer’s is the leading cause of dementia and Alzheimer’s is the sixth leading cause of deaths in the United States” (Latest Facts & Figures Report). Because we are now able to detect Alzheimer’s at the early stages, there has been an increase in reported cases. Several federal judges have served in office at an age or in a physical condition that should not have been allowed. For instance, William O. Douglas served 37 years on the Supreme Court and is the longest term in history for federal judges (Douglas, William O). At the age of 84, Judge Richard Owen of the U.S. District Court in Manhattan conducted a side bar with the lawyers during a trial to explain what e-mail was. On a later case, Judge Owen ended up sentencing a defendant to life in prison because—during the trial—the prosecutor in the case referred to the defendant as “the key into that apartment”. Judge McWilliams took it literally that the defendant gave the perpetrators a key that allowed them entry to the apartment, to commit a robbery, and kill three people. Therefore, the judge considered the defendant a accessory to the murders and found him guilty on three counts of second degree murder. Judge McWilliams served as a federal judge and heard cases until the age of 95. A survey conducted in 2010, by ProPublica, calculated that approximately 12% of the nation’s federal and circuit judges are 80 years or older. The same survey revealed that eleven of these judges were over the age of 90 and continuing to hear cases. One judge was reported to be