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Age and public office

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In a subthread in Scott’s Lani Guinier post, Bijan Parsia takes me to task for supposedly consistently indulging on this blog in what he characterizes as ageism. He’s responding to my comment pointing out that the prevalence (I said incidence but I should have said prevalence) of Alzheimer’s approximately doubles every five years in geriatric cohorts, and that this fact should have implications for how we think about whether it’s a good thing that so many of the top political and legal figures in the USA at present are very old.

Let me preface this by saying I think Bijan is an excellent commenter in general, although I think he’s totally wrong on this particular issue. Here’s the basic claim he made in this subthread:

People with Alzheimer’s can be perfectly functional. It’s highly unlikely that any major political figure has debilitating dementia, much less many of them, just on public behavior.

Your ongoing ageism isn’t pretty.

One in 10 people (10%) age 65 and older has Alzheimer’s dementia” to the chance that one of Thomas (73), Breyer (83), Roberts (66), Alito (71), Sotomayor (67), Pelosi (81), Trump (75), Biden (79), Schumer (71), McConnell (79) is close to 100% is just wrong. The probability that any of these has clinically significant dementia is probably close to 0. People in this age group aren’t equally likely to have dementia so you can’t just translate the descriptive stats into an individiualised probability.

(One way to think about it is that if you *randomly* an American age 65 and older and knew nothing else about them 1:10 odds is a reasonable bet to make. If you found out that they were holding down a high profile job with significant public speaking…that’d be a foolish bet.)

My view is:

(1) Deterioration of cognitive function in the elderly is an essentially universal thing. Limiting concern about this to clinical dementia, whether from Alzheimer’s disease or some other source, is far too under-inclusive. For example, I don’t want the president of the United States to be “perfectly functional” in the sense that people with sub-clinical dementia are “perfectly functional.” The amount of dementia I want in a POTUS or a SCOTUS justice or a senator etc. etc. is “none.”

(2) The “can this person still appear to do the job upon superficial examination” test is a bad test. We now know Ronald Reagan was suffering from the early but still drastically suboptimal all things considered stages of Alzheimer’s during his second term, but he was still holding down high profile employment while successfully reading speeches written by others off teleprompters.

This test is especially inappropriate for federal judges in general and SCOTUS members in particular, given that there’s no mechanism from removing these people from office short of impeachment and conviction, which as far as I know has never been used to force a demented federal judge — and there have been plenty — out of his or her essentially irrevocable lifetime appointment. (After William O. Douglas was finally convinced to resign when he was very obviously losing his marbles, he nevertheless showed up at the beginning of the next SCOTUS term expecting to conference with the “other” justices, and was furious when he discovered his clerks had been assigned to his replacement. The justices actually all signed a letter explaining to him that he was no longer on the Court).

(3) Having people in their late 70s, 80s, and 90s holding important public office is just a bad idea as a general matter. This isn’t merely because the inevitable reality of loss of cognitive function at these ages will in some cases get bad enough to obviously interfere with the performance of the job (See for example the painful ongoing case of Dianne Feinstein). It’s also because very old people as a general rule are going to have all kinds of health issues which are going to make it harder for them to do their job than it would be for a younger person to do the same job.

Now of course you or I might want to ignore this general rule in this or that individual case. But general rules are supposed to be general, because they’re not supposed to be addressed to the merits of individual cases. I personally believe that all SCOTUS justices should be required to resign no later than age 75, because the benefits of such a general rule outweigh the costs that will be incurred by occasionally forcing the resignation of someone that, all other things being equal, should stay on the bench. Similarly, I think nominating a 78-year-old to the presidency is as a general matter a terrible idea, although obviously I’m going to vote for him in the general election if the alternative is a little bit of light fascism.

The reason I believe these things is because I reject the incredibly insidious idea, lurking at the base of so many of our institutions and social practices, that talent is in short supply. Ruth Bader Ginsburg didn’t resign from the SCOTUS because she thought it would be impossible to find someone who could do her job as well as she did it. We don’t have to go to anywhere close to that length of self-delusion to recognize that it should be a very rare circumstance where we choose, in the context of an election to high public office, or in the case of judges continuing to hold such office, to put people in their 80s in those positions, when there’s ALWAYS somebody a good deal younger who is otherwise just as able to do the same job, without bringing to the position all the serious disadvantages from a purely epidemiological perspective that an eightysomething holder of that office must necessarily bring.

“Ageism” is supposed to mean unjustified discrimination on the basis of age. It doesn’t mean making decisions on the basis of general rules regulating the suitability of various classes of people to hold various jobs and other social privileges. We don’t allow 12-year-old automobile drivers or 75-year-old airline pilots for perfectly good reasons. Applying these same general principles to potential candidates or present holders of the most important political and legal jobs in America isn’t ageism: its a balancing of the various costs and benefits involved in having general rules regarding when age should be a disqualification for certain sorts of jobs.

Now you may personally strike that balance differently than I do, but it’s absurd to condemn the very idea of undertaking such calculations, because they supposedly involve “ageism.”

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