On the heels of Oakland County Judge Kirsten Nielsen Hartig’s dementia diagnosis, I felt it worth stating something the judicial system often avoids: she is not the first cognitively impaired jurist to fight to remain on the bench.
People who have had elderly loved ones refuse to give up driving may recognize the pattern: it is not really about the keys, it is about identity.
First comes the tiny flinch when the topic is raised, like you just accused them of something shameful. Then the bargaining: just to the store, just in daylight, just on roads I know.
Then the stories start. I have been driving longer than you have been alive. I have never had an accident. I am careful. Everyone else is the problem.
Next is the misdirection. Why are you making such a big deal out of this. You are overreacting. You are trying to control me.
And underneath all of it is the quiet fear nobody wants to say out loud. If I cannot drive, I cannot decide. If I cannot decide, I am not me anymore. So they grip the steering wheel tighter, not because they are reckless, but because letting go feels like disappearing.
Sadly, this pattern is also very common in how an afflicted person handles the diagnosis of a neurological disease. Many forms of dementia and frontotemporal disorders are accompanied by anosognosia, a condition in which the person experiencing cognitive decline does not perceive themselves as impaired, even when objective testing shows otherwise.
The legal profession was warned about this potential collision for years. In 2021, the American Bar Association publicly cautioned that an aging lawyer population would soon bring a surge of attorneys and judges facing neurocognitive decline into courtrooms across the country.
What we are seeing now in Michigan with Judge Hartig is not an anomaly. It is a forecast coming true, and it stresses the need for the Fit-Bench bill to move from a concept to a safeguard. Just like families eventually have to take the keys from a loved one who is no longer safe to drive, a democracy has to have a way to verify that the people entrusted with life-altering decisions still have the mental capacity to make them. Michigan currently has no such mechanism.
Fit-Bench fills that gap before more people are hurt by a system that keeps operating on assumption instead of evidence.
Why the Fit-Bench Act Matters: Lessons from the Judge Pauline Newman Case
In federal courts last year, one of the nation’s longest-serving judges, Judge Pauline Newman of the U.S. Court of Appeals for the Federal Circuit, became the center of a rare and messy dispute over judicial capacity and fitness to serve.
At age 96, an age where most elderly individuals have long given up their driver’s licenses, she was suspended from hearing new cases after concerns were raised by colleagues about her ability to manage her workload amid alleged cognitive and health issues…and she refused to undergo court-ordered medical evaluations. The case sparked lawsuits, appeals, public commentary, and months of internal conflict with no clear resolution.
Though Michigan does have an age-limit for judges, this episode illustrates why Michigan needs a Fit-Bench Act, a proactive, transparent, and early-detection system for judicial fitness, instead of leaving the system to hope for the best or deal with disputes only after they’ve blown up.
What Happened in the Newman Case
In 2023, the Judicial Council of the Federal Circuit acted under the federal Judicial Conduct and Disability Act after staff and other judges raised concerns about Judge Newman’s recent performance. A special committee asked her to submit to medical evaluations and produce relevant medical records as part of an inquiry. She refused.
This makes no sense, as science tells us that cognitive abilities decrease over time. There was also substantial evidence from court staff citing that they were in fact worried about her cognitive abilities, and that she had experienced health issues and was already on a modified court schedule.
As Newman dug her heels in, the Judicial Council responded by suspending her from receiving new case assignments for at least a year.
Judge Newman and her attorneys mounted legal challenges, claiming that the process violated constitutional due process protections, was constitutionally vague, and effectively amounted to removal without impeachment. Most of those claims were dismissed on procedural grounds, and courts have so far upheld the authority of the Judicial Council to take such action.
What matters for policy is not who was right on the law. It is that for years, this issue:
- dragged on in court orders and appeals,
- consumed institutional energy and time,
- raised more questions than it answered about how to evaluate judicial capacity, and
- created uncertainty for litigants and colleagues alike.
Why This Is a Problem
The Newman saga reveals key weaknesses in the current system:
1. No Clear, Predictable Standard
The judiciary’s internal rules allowed a suspension but did not provide a clear, neutral, standardized way to assess capacity. That left the council and the judge’s colleagues to improvise under pressure.
2. No External Metrics or Early Warning Signals
There was no routine performance data or structured metrics that could have flagged issues before the situation escalated into suspension and litigation.
3. Process Drifted into Dispute
Instead of focusing on evidence and evaluation, major parts of the case centered on whether the judge should have to participate in an evaluation at all — a debate that distracted from the underlying question of capacity.
4. Resource Drain and Institutional Conflict
The dispute generated litigation and institutional friction over months, drawing resources away from normal court business and creating public confusion about how courts care for their own members.
This is the exact problem the Fit-Bench Act was designed to prevent.
How the Fit-Bench Act Would Change the Script
The Fit-Bench Act does not assume impairment. It assumes that no professional should go unexamined for years in a safety-sensitive role where capacity directly affects rights and liberty. Here’s how it would respond differently:
1. Baseline Screening and Ongoing Monitoring
Under the Fit-Bench Act, all judges would have confidential baseline assessments and periodic performance data collection (e.g., guideline application accuracy, appellate reversal rates, procedural stability). When performance trends deviate from expected patterns, that automatically triggers a structured review.
This means the system has neutral metrics and data to point to rather than ad hoc allegations long before conflict or suspension becomes necessary.
2. Triggered, Confidential Evaluation
Instead of leaving fitness questions to informal complaints or collegial disagreement, the Act empowers a confidential evaluation panel to assess capacity when objective indicators cross specified thresholds. That panel includes medical and neurocognitive professionals, so the question is about ability, not politics.
In the Newman case, a defined threshold mechanism could have:
- reduced controversy over whether an evaluation was appropriate,
- provided neutral, medically informed insight early,
- and prevented the institutional conflict from escalating into litigation.
3. Clear, Predictable Process and Due Process Protections
Fit-Bench defines the pathway precisely:
- objective triggers,
- due process rights,
- confidentiality,
- and proportional responses.
That level of structure removes uncertainty; courts, litigants, the judge in question, and the public all know what comes next.
4. Protecting Institutional Resources
A drawn-out dispute over a judge’s capacity consumes administrative resources, pulls colleagues into internal conflict, and can delay or disrupt court business. By intervening early and neutrally, the Fit-Bench Act helps keep courts focused on their mission rather than on whether someone should be unassigned from cases. It protects taxpayers from paying for protracted institutional strife as well.
Fit-Bench Is Not Punishment — It’s Prevention
What makes the Fit-Bench Act fundamentally different from episodes like Judge Newman’s suspension is its neutral, preventative logic.
It does not:
- force medical evaluations without cause,
- authorize removal without process,
- or weaponize capacity questions for ideological ends.
It does:
- use data and evidence, not rumor,
- preserve due process and dignity, and
- intervene before harm multiplies.
Michigan’s courts should not wait for another situation like this to unfold in public, absorb the resource drain, and then explain why nothing was in place to address it earlier.
The Practical Bottom Line
When a judge’s capacity is in question, the consequences aren’t at all private. They directly affect:
- litigants waiting for rulings,
- families whose lives are determined by judgments,
- attorneys and staff who depend on stable chambers,
- and the credibility of the court system as a whole.
A Judge is not entitled to their job just because they’ve been doing it for years (and statistically speaking, potentially already under impaired conditions).
The Fit-Bench Act takes a science-based, performance-grounded, humane approach to protecting all of those interests, and prevents taxpayer resources from being diverted into years of adversarial uncertainty because the system lacked a better way.
