Category Archives: mandatory retirement

On dotty judges, doctors, professors …

Humph, by Roger B.

There are two compelling reasons for the timely retirement of people in sensitive professions:

1) Institutions like courts, hospitals, and universities need new blood; they need those who have been trained in up-to-date science and technology to be in charge. True, the aged incumbents have experience (and, some would say, wisdom) that younger people may lack. This experience, where it exists, needs to be available to these institutions, but in advisory capacities. It is also a fact that the younger and more competent scientists and scholars receive lower salaries than their less competent seniors. So these seniors constitute not only an intellectual but also a fiscal drain on some of our most crucial institutions.

2) The diminution of human capacities in old age is very common indeed; it seems that by age 75 a majority of people have experienced some substantial drop in their mental acuity. When the very old still occupy positions of great power and influence, the decrepitude of the elders has proven to be a public menace. In response, and rather than rely on questionable tests of continued competence, many institutions have enforced mandatory retirement (but universities have been forbidden to do so by federal legislation). The oldest still-existing government in the world, the Roman Catholic Church, retires its priests at age 70, its bishops at 75, and forbids its Cardinals to vote in papal elections after age 75. The Supreme Court of Canada retires its justices at 75; the Israeli Supreme Court at 70. But there is no mandatory retirement at the U.S. Supreme Court.

The United States Supreme Court

The U.S. Supreme Court is one of the most powerful institutions in the world. Its membership is small but it enjoys tremendous public attention. We know more about its Justices than we know about almost any other group of human beings. And some of these Justices stayed in office until they were old, very old. From my observations in my last paragraph, I expected to find that more than a few of these Justices became mentally decrepit while in office, and this proved to be the case: dozing during arguments, not knowing which side of an issue they supported, sometimes not knowing the difference between appellant and respondent.

The most complete accounting of this Supreme Scandal is now nine years old: Professor David J. Garrow, “Mental Decrepitude on the U.S. Supreme Court: The Historical Case for a 28th Amendment.” Writing in 2000, Garrow finds evidence of decrepitude in twenty justices (roughly 20% of all) since the beginning of the republic. (We do not know how many more he would have needed to list had he written today.) In the more modern history of the Court, Garrow lists the following Justices as among those who showed signs of mental decrepitude while sitting on the Court: William Howard Taft, Oliver Wendell Holmes, Frank Murphy, Sherman Minton, Charles E. Whittaker, Hugo Black, William O. Douglas, William H. Rehnquist, Lewis F. Powell, William Jr. Brennan, and Thurgood Marshall. (Again: would he have had to add any names from the Court of today ?) Quite reasonably, Garrow supports a constitutional amendment to control the open-ended tenure that obtains now.

The Medical Profession

Once a physician obtains a license to practice, it is extraordinarily difficult to withdraw this privilege from him, no matter what his age. It is not uncommon to see practicing physicians who went to medical school more than half a century ago. How much do they know about modern medicine ? Very few jurisdictions, if any, have procedures for re-examining the holders of medical licenses at regular intervals.

There is a general problem about licensing a person to perform a potentially dangerous act. Driver’s licenses, among others, tend to be valid indefinitely, with very few restrictions. The person who performed well at age twenty at a driver’s test is, for all intents and purposes, presumed to have his youthful driving abilities intact at age ninety.

If this is a problem in dotty drivers, so much more in dotty doctors. They can do a great deal of harm, but, unlike Supreme Court Justices, their cases do not enjoy great notoriety. In December of 2007 I reported on the famous inter-war German Doctor Ferdinand Sauerbruch whose great prestige among his peers as a young man prevented the German medical establishment from coping with his senility when he continued to practice, and endanger his patients, as an old man. While the aged Justice Thurgood Marshall didn’t know who was appellant and who was respondent, the aged Doctor Sauerbruch didn’t know, in the operating room, which organ needed surgery. Since then, my family has had a number of sad experiences with dotty doctors, some of which endangered the health and even the life of the patient.

No physician should be allowed to practice (other than, perhaps, in a consultative capacity) at an age at which a substantial number of persons have been found to be impaired in their judgment. The self-policing by the profession, through voluntary referrals, etc., seems to have fallen far short of preventing substantial abuses. I think that the unlimited license to practice should expire at a reasonable age, say seventy, with perhaps some limited privileges allowed after that.

The Universities

Dotty professors are less conspicuous in the harm they do than their fellow-dotties behind the wheel, on the bench, or in the operating room. But even consider the not-dotty over-70’s, do we really need so many elderly gentlemen teaching the students of today from a perspective, largely, of their own graduate studies in the 1950’s ?

Some six years ago history professor Henry Huttenbach of City College in New York was seventy-three years old, and he explained for the Chronicle of Higher Education why he does not at all feel like retiring:

As long as one has something vital to contribute — half a century of classroom experience, decades of research still filled with unexpressed ideas in as yet unwritten articles and books — why stop? Why abandon the satisfaction of the daily give-and-takes with students and colleagues? For golf? For Florida? For full-time grandchildren-sitting?

And frankly, he also says, the money is better if you don’t retire. He does not mention any need for new blood in the academy. Nor does he mention any new facts, or insights, or techniques that the graduate schools of today may have to offer to younger scholars that were not available in his graduate training. Nor the fact that, with his full professor’s salary, his college could hire more of these younger people. But, by all means, read what he himself has to say by clicking here.

Where is the burden of proof ?

The argument against mandatory retirement is often phrased roughly as follows: If a person attains a certain chronological age, say sixty-five or seventy, or whatever, that fact alone does not prove that he is no longer competent to perform in his profession. He or she should be allowed to continue unless he is proven incompetent.

My argument is the opposite. Given the fact that society has a strong interest in competent judges, doctors, professors, etc., and given the fact that a substantial number among the aged suffer from at least some degree of mental diminution, the burden of proof should be on the elderly individual to prove his continuing capacity. If the eighty-year old physician can pass the equivalent of his specialty board once again, and can prove his mental competence, by all means, be my guest, keep practicing. But for all the others, for all those elderly doctors and judges and professors, etc., unwilling or unable to pass the tests that their younger colleagues need to pass, I say, please, it’s time to move over, to make room for the young, to protect the patients and the litigants and the students.