WICHITA, Kan. — Judge Wesley E. Brown’s mere presence in his
courtroom is seen as something of a daily miracle. His diminished frame is
nearly lost behind the bench. A tube under his nose feeds him oxygen during
hearings. And he warns lawyers preparing for lengthy court battles that he may
not live to see the cases to completion, adding the old saying, “At this age,
I’m not even buying green bananas.”
At 103, Judge Brown, of the United States District Court here, is old enough to
have been unusually old when he enlisted during World War II. He is old enough
to have witnessed a former law clerk’s appointment to serve beside him as a
district judge — and, almost two decades later, the former clerk’s move to
senior status. Judge Brown is so old, in fact, that in less than a year, should
he survive, he will become the oldest practicing federal judge in the history of
the United States.
Upon learning of the remarkable longevity of the man who was likely to sentence
him to prison, Randy Hicks, like many defendants, became nervous. He worried
whether Judge Brown was of sound enough mind to understand the legal issues of a
complex wire fraud case and healthy enough to make it through what turned out to
be two years of hearings. “And then,” he said, “I realized that people were
probably thinking the same thing 20 years ago.”
“He might be up there another 20 years,” added Mr. Hicks, 40, who recently
completed a 30-month sentence and calls himself an admirer of Judge Brown. “And
I hope he is.”
The Constitution grants federal judges an almost-unparalleled option to keep
working “during good behavior,” which, in practice, has meant as long as they
want. But since that language was written, average life expectancy has more than
doubled, to almost 80, and the number of people who live beyond 100 is rapidly
growing. (Of the 10 oldest practicing federal judges on record, all but one
served in the last 15 years.)
The judiciary has grown increasingly reliant on semiretired senior judges — who
now shoulder about a fifth of the workload of federal courts. But recently, some
courts have also started taking steps that critics call long overdue to address
the challenges that accompany jurists working to an advanced age.
“Attention to this area is growing in the judiciary,” said Judge Philip M. Pro,
a district court judge in Las Vegas. Judge Pro leads the Ninth Circuit Wellness
Committee in California, which focuses on age- and health-related issues facing
judges. A similar committee is being established in the 10th Circuit, which
includes Kansas.
“Most judges take pride in their work,” Judge Pro said. “They certainly want to
be remembered at the top of their game. But a lot of time you’re not the best
arbiter of that — it’s hard to see it in yourself if you’re having
difficulties.”
Lawyers and colleagues who work with him say that is certainly not the case with
Judge Brown.
True, the legal community here has grown protective of him over the years. In
his younger days, he was so well known for his temper — lateness, casual dress
and the unacceptably imprecise word “indicate” would all set him off — that
before hearings one prominent defense lawyer used to take a Valium, which he
called “the Judge Brown pill.”
Now, lawyers use words like “mellowed,” “sweet” and “inspirational” to describe
him, and one longtime prosecutor began to cry while talking about his penchant
for gallows humor. “Sorry,” she said. “It’s just I can’t imagine practicing
without him.”
A few years ago, when they noticed that while speaking in court Judge Brown
would occasionally pause, sometimes for what seemed like minutes, lawyers,
clerks and fellow judges worried that they were witnessing the beginning of a
decline that would make him incapable of doing his job. But he began using an
oxygen tube in the courtroom, and the pauses disappeared. (During an hourlong
interview in his chambers, he paused briefly just once while trying to recall
the last name of Earl Warren, the former chief justice of the United States, but
he was without his oxygen tank.)
The consensus is that Judge Brown is still sharp and capable, though colleagues
acknowledge that his appearance can be startling. “Physically he’s changed a
lot, but mentally I haven’t noticed any diminution of his ability,” said Judge
Monti L. Belot, the former law clerk who now has his own courtroom in the same
building, “Which has to be pretty unique.”
Nevertheless, Judge Brown has begun making a few concessions to his age. He
still hears a full load of criminal cases, but now he takes fewer civil cases,
and he no longer handles any that may result in lengthy trials. He spreads his
hearings throughout the week to keep his strength up, and he no longer takes the
stairs to his fourth-floor chambers.
Though most federal judges could resign outright and continue to receive their
full salary once they reach 65, a majority — like Judge Brown — elect to move to
senior status, a type of semiretirement that allows them to continue to work at
a full or reduced level. The courts have become deeply reliant on such judges to
handle the caseload, but they have also struggled with how to ease out judges
whose desire to keep working no longer matches their ability.
In rare circumstances, a panel of judges can vote to remove another judge
because of disability, which has happened only 10 times — most recently in 1999.
Or, the chief judge of the court can stop assigning the cases to the judge. More
often, a trusted colleague will be enlisted to suggest retirement or
reassignment to ceremonial duties, said Judge Marcia S. Krieger, a district
court judge in Denver who has been surveying judges in the 10th Circuit about
aging issues.
Judge Brown has taken the step of asking a few trusted colleagues, including his
longtime law clerk Mike Lahey, to tell him when they believe he is no longer
capable of performing his job. “And,” the judge said, “I hope when that day
comes I go out feet first.”
Born on June 22, 1907, in Hutchinson, Kan., Judge Brown, who had become a
prominent local Democrat, first sought appointment by President Harry S. Truman
to the federal bench while serving as a lieutenant in the Navy during World War
II (at 37, he was the oldest man in his unit). He failed, but in 1962, after a
stint as a bankruptcy judge, he was appointed to the district court by President
John F. Kennedy. He earned a reputation as a pragmatic jurist whose
middle-of-the-road rulings reflect a desire to apply rather than make the law.
Judge Brown is one of four Kennedy appointees still on the bench and the oldest
federal judge in the country by six years, according to the Federal Judicial
History Office. The only judge to serve at a later age was Joseph W. Woodrough,
who was on the Eighth Circuit until 1977, when he died at 104.
For his part, Judge Brown is dismissive of talk of his place in the record books
and tired of all the fuss over his birthdays. “I’m not interested in how old I
am,” he said. “I’m interested in how good a job I can do.”
