You know it's time to retire when ... (a retirement test)

There's no denying that a substantial number of judges are past the "normal" retirement age of 65. I'm one of them. I've heard some recent frustration with this situation from members of the bar. Some have even suggested a mandatory retirement age. Whenever I read or hear such musings, I ask myself whether I am one of those judges the grumblers consider to be over the hill. Am I missing the signs that I should retire?

For many reasons, the decision to leave the bench is a difficult one to make.

First, you hear many stories about people who die soon after retirement. Work, it seems, is good for you. You don't want to end up in an early grave. For most of us, this is the best job we've ever had, and we are unlikely to get a better one.

Second, there are plenty of examples of colleagues who are older than you are and who continue to function better than ever. We all know many older jurists who continue to exhibit both mental acuity and a capacity for hard work. Even if they have lost some physical stamina, they more than make up the difference by simplifying their consideration of issues to those that are essential. These judges are amazing to watch: there are no unnecessary proceedings, and their rulings are more readily accepted because of their reputation, win or lose.

Yet we all know of examples where self-assessment can be illusory. It's too easy to convince yourself you are a wise old person. There are ways in which you are less than yourself, but also ways in which you are more than you used to be, more than you've ever been. In addition, objective evaluation is hard to obtain. Your friends will tell you you're as sharp as ever. Your enemies will mutter behind your back, and in online chat rooms you can't access. A few of us have staff who will tell us the truth, but that is rarer than you think. As a judge grows weaker, his or her staff grows stronger, and sometimes they like that.

The news brings us stories of seniors who hold immense power and find it immensely hard to give it up as they age. It must be admitted that even the limited power of a trial judge is hard to relinquish. For all but the very best of us, there is a growing dread of the irrelevance that comes with retirement. In court, the judge gets the last word, but an aging person without a robe rarely commands anyone in the rest of the world. You're just like anyone else, waiting your turn in the grocery store or vainly arguing with some sort of artificial intelligence on a website or after dialing a 1-800 number. You lose the ability to affect your surroundings by just muttering a satisfying: "Overruled," or "Denied." Instead, you are a fading gray person that others often don't notice at all.

A customer satisfaction survey wouldn't help much. On any given day in which a judge makes 10 rulings, there are 10 people leaving court who will wholeheartedly call for retirement, and 10 who will claim the judge retains the wisdom of Obi-Wan Kenobi. Judging isn't supposed to be a popularity contest anyway. On a day when you are truly doing your job, you may make all 20 litigants equally unhappy.   

As a public service to myself and others considering retirement, I decided to develop a self-assessment test that might provoke an objective self-appraisal of one's remaining abilities. At first, it came out as a series of questions and answers that sounded like a Jeff Foxworthy routine about how you know you're a redneck. The crowd asks, "You know you should retire when ..." and then the comedian answers after an appropriate pause, "It takes you longer to find your keys than it does to drive to work." [Drumroll, please.] The comedian: "Yes, when that happens you definitely know you should retire."

After some consideration, I thought the test worked better as a sort of questionnaire in which I would describe a series of conditions that seem somehow familiar to me. If you want to take the test with me, after reading each of the following items, check the boxes when they apply. Honesty is required, but as I told some friends with whom I was playing poker recently: "If you can't trust a judge, who can you trust?"

The retirement test

1. You find yourself bothered by male lawyers not wearing a suit and/or a tie. But you also don't feel like wearing suits or ties anymore.

If this applies to you, check the box. £

2. You find yourself in an elevator with a younger judge you've met a few times. You say hello. "Who are you?" the younger judge politely inquires.

If this applies to you, check the box. £

3. Lawyers in front of you for oral arguments have never heard of the cases you are citing from your first-year law school courses. You have a much better memory of those cases than you do of the more recent appellate cases, even ones in which you were the trial judge.

If this applies to you, check the box. £

4. Instead of working out at lunch, you tend to take a nap.

If this applies to you, check the box. £

5. Lawyers interrupt you because they think you've stopped talking when all you are doing is pausing in the middle of a sentence.

If this applies to you, check the box. £

6. You have trained yourself so well to avoid reacting in court that you worry you have forgotten how to laugh or smile.

If this applies to you, check the box. £

7. You realize that there are three generations in the workplace in addition to yours. You conduct internet searches like: "What is generation Y?" "How is a Gen Y different from a Millennial?"

If this applies to you, check the box. £

8. People are always telling you that you look great and they never would have guessed that you are 65, 70, or 75. You look in the mirror and wonder whether they are lying to you.

If this applies to you, check the box. £

9. You write out your thoughts in handwriting before you start typing. You find yourself waxing eloquently regarding the times when there were secretaries who could read your writing and who could take dictation and type it up.

If this applies to you, check the box. £

10. You start citing the "Maxims of Jurisprudence" (Civil Code §§ 3509 et seq.) rather than the rest of the Civil Code because maxims make more sense to you.

If this applies to you, check the box. £

11. You are reluctant to retire because you don't think you have enough energy to clean out your office.

If this applies to you, check the box. £

12. You start using capital letters and italics and writing in 14-point type because you think people are not reading your orders closely enough. Although it doesn't have much effect on others, you find that it does help you read your own orders.

If this applies to you, check the box. £

13. People start openly saying they can't hear you. You move the microphone closer to your lips and speak up. They still can't hear you.

If this applies to you, check the box. £

14. You investigate retiring but it looks like too much trouble. There's a lot of complicated paperwork and you don't feel you have the time or energy to prepare all of it. You learn that the wait in the Social Security office is three hours long and all you get from that is the hope that someday, someone will call you on the phone to discuss your application.

If this applies to you, check the box. £

15. You ask lawyers to provide you with paper copies of briefs.

If this applies to you, check the box. £

16. You still prefer legal books to website versions or computerized printouts of cases.

If this applies to you, check the box. £

17. You think each latest technological improvement in the courtroom is a disaster worse than the last supposed improvement.

If this applies to you, check the box. £

18. You enjoy it when lawyers show up in person to provide arguments on motions. It reminds you of better times when you felt like a judge and not just a switchboard operator.

If this applies to you, check the box. £

19. You are concerned about the growing number of proceedings taking place completely in secret. You worry that judicial discretion is sometimes so constrained that judges are being asked to perform purely clerical functions. You are worried that trials may soon turn into video conferences. You start thinking some of these things might be unconstitutional, but they don't seem to be of concern to anyone else.

If this applies to you, check the box. £

20. You feel like you want your freedom of speech back. You've heard that older folks get to say just what's on their mind. You're not sure you can remember anything important that you really need to say, but on the off chance you think up some brilliant but controversial idea, you want to be able to express it openly.

If this applies to you, check the box. £

I certify that no artificial intelligence aids were used in the development of this questionnaire. There is no continuing legal education credit for this test.

I would suggest that if more than 15 of these 20 items apply to you, you should seriously consider retirement. I won't tell you what my score is, but I'm retiring in June.