The Sixth Circuit's New Chief and Ageist Rules of Succession

Word on the street is, this August, Judge R. Guy Cole, Jr. will succeed current-Chief Judge Alice Batchelder.

Why? The Sixth Circuit Appellate Blog doesn't provide a reason, but we suspect that it has something to do with the ageist rules of succession for chief judges of circuit courts, set forth in 28 U.S.C. § 45.

Rules of Succession: An Ageist Statute

How is the chief chosen? Here are the prerequisites:

• At least one year of active service on the circuit court;
• Sixty-four years of age or younger;
• Never served as chief judge.

If no one fits the bill, there is a complicated alternative line of succession:

• The youngest circuit judge in active service, who is sixty-five years of age or older, and who has served on the court for at least one year shall act as chief judge;
• If that fails, and no one has been on the bench for a year, the most senior active judge who has not previously been chief gets to warm the seat.

Chief Judge Batchelder Ages Out

The ageism doesn't stop at the selection process. The seat rotates upon the expiration of the current seat-holder's term, which ends either:

• After seven years;
• At the age of 70 (assuming a replacement under the normal rules is available);
• At the point where an eligible candidate emerges (for acting chief judges under the complicated alternative succession plan);

Why is the chief changing in August? Happy Birthday, Judge Batchelder! She turns 70 on July 15, per Wikipedia.

Institutionalized Ageism

The age limits are a bit ridiculous, aren't they? For a bit of context, note that five of the nine judges on the Supreme Court would be too old to serve as chief, and four would have "aged out" out of the seat.

Does anyone think Ginsburg, Breyer, Kennedy, Scalia, and Thomas (and Alito is getting close) are all incapable of serving as a chief judge?

One might also look at the proposals in seventeen states to raise the mandatory retirement age for judges, and the more than two dozen states that have no limit, to see that age limits are passé. Eighty is the new sixty, and sixty-five is barely middle-aged.

Besides, these are grown men and women. If the thought is that older judges should be spared the administrative hassles of being chief, isn't that best left to the judges themselves? They can decline the job, can't they?

Who is R. Guy Cole, Jr?

Batchelder's year-early replacement, Judge Cole, is an alumni of Yale Law School and Tufts University. After graduating, he alternated between private practice and the Department of Justice before taking the bench on the U.S. Bankruptcy Court from 1987 to 1993.

He returned to private practice for about two years before his appointment, by President Bill Clinton, to the Sixth Circuit in 1995. He was confirmed unanimously by a Republican-controlled Senate.

Related Resources:

• Nifty. Sixth's Site Has CJA, Appellate Advocacy Training Videos (FindLaw's Sixth Circuit Blog)
• Was Ret. Judge Martin, The Liberal Lion, Lying? Case Sent to DOJ (FindLaw's Sixth Circuit Blog)
• The Curious Marijuana Case of USA v. Gerald and Jeremy Duval (FindLaw's Sixth Circuit Blog)