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2 federal judges have changed their minds about senior status; will 2 appeals judges follow suit?

By Debra Cassens Weiss

December 5, 2024, 10:02 am CST

After President-elect Donald Trump won a second term in the White House, two Democratic-appointed federal judges announced that they no longer plan to take senior status.

The reversal means that there will not be two additional vacancies for Trump to fill when he takes office, report Reuters, Law360, Law.com and CNN.

The two judges are:

  • U.S. District Judge Max O. Cogburn Jr. of the Western District of North Carolina, an appointee of former President Barack Obama. Cogburn had announced his plans to take senior status after his successor was confirmed in 2022, but Biden did not choose a replacement. Any nominee would have needed the approval of North Carolina’s two Republican U.S. senators under a U.S. Senate custom of blue-slip approval.

  • U.S. District Judge Algenon L. Marbley of the Southern District of Ohio, an appointee of former President Bill Clinton. Marbley had notified Biden of plans to retire in October 2023, according to the Columbus Dispatch and Reuters. Biden had not nominated a replacement, which would have needed the support of Vice President-elect J.D. Vance, who’s currently one of Ohio’s two senators. The other senator is Democratic Sen. Sherrod Brown.

Judges can take senior status, which allows them to reduce their caseload, if they are older than age 65 and have been on the bench at least 15 years, Reuters explains.

The judges’ decisions come amid a deal between Democrats and Republicans in which the Senate won’t hold votes on four of Biden’s appeals court nominees while advancing the president’s district court nominees, according to the Associated Press and Bloomberg Law.

The deal was made after Republicans used “stalling tactics” to hold up judicial confirmations, according to Bloomberg Law.

The deal gives Republicans a chance to fill seats on the 3rd U.S. Circuit Court of Appeals at Philadelphia and the 1st Circuit at Boston. The two other appellate judgeships are not yet officially open because the judges made their transition to senior status contingent on confirmation of a successor.

Those two judges are Judge Jane Branstetter Stranch of the 6th Circuit at Cincinnati and Judge James Andrew Wynn of the 4th Circuit at Richmond, Virginia.

Republican Senate Minority Leader Mitch McConnell of Kentucky is worried about the possibility, according to CNN’s reporting on his comments.

“Never before has a circuit judge unretired after a presidential election,” McConnell said. “It’s literally unprecedented. And to create such a precedent would fly in the face of a rare bipartisan compromise on the disposition of these vacancies.”

Ever have that thought? “I must be losing my mind because I can’t remember where I parked my car or set my iPhone, your name—although I recognize your face—an address, a birthday, a password, a set of numbers, what I was looking for, etc.” Many aging lawyers have—including me.

Are we really losing it, or is it just another “senior moment” that is part of the natural aging process? And in either case, what can we do about it? I want to talk about maintaining and improving cognitive abilities as we senior lawyers age.

But first, my disclaimer: I am not a medical doctor or trained health care professional in neurology, brain diseases and their diagnoses; the natural aging process; or treatments and prevention of cognitive impairment. I am a senior lawyer who is aging and has an interest in the subject matter because my brain is an indispensable component of successful lawyering.

Keeping my brain healthy has been and continues to be very important to me, as I suspect it is to all senior lawyers.

If you have real concerns about your memory “episodes,” for example, if they interfere with your practice of law or other routine daily activities, you should consult your physician or other health care team members to evaluate your condition and follow their recommendations.

For those senior lawyers who have suffered a brain injury or have been diagnosed with dementia, continue working with your health care team to establish and follow a proper treatment program. This article is not intended to address any of these situations, although an article on mild cognitive impairment published by the Cleveland Clinic identifies steps discussed below as ones that can help keep your brain healthy and reduce the risk of suffering MCI.

Because I am not a medical doctor or a trained health care professional, I consulted some of the many authoritative articles that are readily available on the subject of brain health, which is defined in a National Institute on Aging article to mean “how well a person’s brain functions across several areas,” one of which is cognitive health or “how well you think, learn and remember.”

There seems to be widespread agreement on a number of steps that we can take to maintain, regain and improve our cognitive abilities and our brain’s functioning.

Stay mentally active

Engage in regular challenging mental activity to help maintain brain cell health and stimulate communication among them.

Challenging mental activity is commonplace for lawyers. In fact, I have joked with colleagues that the legal matter seemed easy so I must have missed something. The practice of law is challenging and seems to be ever evolving in its breadth and complexity.

There are new clients to engage and learn their business or legal needs; new laws or regulations to read, digest and apply; new cases to read to stay current in my areas of practice; new articles to write; new attorneys to train; new technology to master; new programs to plan; and the list continues.

For me, one of the attractions to practicing law was the lifelong learning that it offered. I found that to be true and have transitioned my practice areas multiple times in my career. I seek variety in my practice in order to stay engaged. So far, I have not been disappointed.

If you are no longer actively practicing law, then learning new skills will contribute to healthy cognitive functioning as we age, such as playing the guitar or painting, volunteering to help build houses with Habitat for Humanity, mentoring disadvantaged children or adults, reading a new genre of books, playing card games, assembling jigsaw puzzles, or pursuing other creative activities in which you have an interest.

One of the articles suggests that the best new activity is one that is challenging, complex and requires constant practice.

Manage stress

Without question, the practice of law is stressful, and adding issues with cognitive ability into the mix compounds the stress. Learning ways that work for a lawyer to manage stress is important at all stages of a lawyer’s career.

It does not start when the lawyer becomes a senior lawyer. If you are no longer actively practicing law, then you have removed a significant stress factor, but perhaps you have encountered new ones. There exists many readily available books, articles and recommendations for managing stress that you can review and find what is best for your personal situation. To help manage stress related to cognition issues, select and practice the steps discussed in this article that you find work for you.

Exercise regularly

Regular exercise not only helps with stress management, something that is good for our brain in and of itself, but it also helps with other factors that can affect cognitive functioning, such as high blood pressure, cholesterol levels, blood sugar, weight and cardiovascular issues.

Physical activity also helps us sleep better and reduces risks of depression and anxiety. The type of exercise can vary depending upon your physical health, and consulting your physician before undertaking a new exercise regimen is a standard recommendation for those who have underlying health issues or have not previously exercised regularly.

The key is to get moving or keep moving, and if it happens to involve learning a new skill, like pickleball or swimming, there is a mental challenge component that helps improve brain functioning too. The brain needs to be challenged repetitively by complex activity that requires it to work.

Sleep

Sleep enables the brain to “reboot,” that is, to consolidate and store memories effectively. The best sleep is seven to eight consecutive hours, as opposed to two- to three-hour intervals. But the amount of sleep needed varies with age. You may need to consult your health care team to rule out sleep apnea or other potential causes for sleep interferences.

Diet

Pay attention to your diet. Eating the right foods, such as those in a Mediterranean style diet of fruits, vegetables, fish, nuts, unsaturated oils (i.e., olive oil) and plant sources of protein not only helps your physical health but also helps improve your brain health.

Social connections

Social connections are important to stimulate your brain. According to the NIA article, “People who engage in personally meaningful and productive activities with others tend to live longer, boost their mood and have a sense of purpose.”

One way to stay connected is by volunteering to serve on an ABA Senior Lawyers Division committee that is tasked with something meaningful to you. There are numerous opportunities to serve nonprofit organizations and mentoring programs serving the needs of others, and as lawyers, we have developed valuable skill sets to contribute.

Protection

As we age, the risk of falls tends to increase, and our balance may not be as good as before. It is important to protect against physical injury to our brains. If you are experiencing balance issues or have issues with falls, consult your physician or health care team to determine the cause, and then develop and follow a care plan with them.

In addition, there are programs available to help you with these issues. For example, in my community, the YMCA offers a program specifically designed for adults age 55 and older that includes strength building, yoga, water exercise, low-impact aerobics and other balance-related exercises.

Stop tobacco use

If you smoke or chew, stop. Tobacco use has been shown to have numerous detrimental physical health effects, some of which can impact brain health.

For help quitting, you can call 800-QUIT-NOW (800-784-8669), or access the Centers for Disease Control and Prevention’s resources on quitting smoking.

Alcohol in moderation

If you consume alcohol, do so in moderation. Alcohol abuse has been shown to cause depression and may be linked to dementia. If you are addicted, seek help. The ABA maintains a directory of lawyer assistance programs by state, which you can access here. These programs provide confidential assistance to judges, lawyers and law students with substance use disorders and other mental health issues.

While we cannot completely eliminate the effects of aging on our cognitive health, we can take steps to reduce its impact.

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Editor’s Note: This column originally ran in the ABA Senior Lawyers Division publication Voice of Experience in December 2023.

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Rod Kubat is a shareholder in the Des Moines, Iowa, office of Nyemaster Goode, where he represents closely held, privately owned companies in a wide variety of industries and lenders and client borrowers in all types of secured credit facilities and sophisticated structured finance transactions.

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ABAJournal.com is accepting queries for original, thoughtful, nonpromotional articles and commentary by unpaid contributors to run in the Your Voice section. Details and submission guidelines are posted at “Your Submissions, Your Voice.”

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This column reflects the opinions of the author and not necessarily the views of the ABA Journal—or the American Bar Association.