With the two leading candidates for the presidency both being, well, old, we see age coming up quite often these days in the public discourse over who is, or who is not, too old to serve. President Joe Biden is 80, though apparently an amazingly fit 80 (remember please, his occasional slips of the tongue come more from being a life-long stutterer and not from age). Former President Donald Trump is 77 and claims to be 6-foot-3 and 215 pounds of pure fitness. Right…

But frankly, an objective and non-partisan review of both men would conclude, I’m quite sure, both men are mentally and physically well enough to serve. We can quibble, especially about Trump, given the obvious lie about his weight, but he does not seem to be suffering from any significant declines in abilities due to age (my fellow liberals may insert their own jokes here).

I bring this up not just because I turned 65 this year and am now officially a senior citizen (give me my check but leave me alone, dadgumit!). No, I mention ages because of an interesting story that recently appeared in Colorado Politics. It seems there is a judge who sits on the federal appeals court who is a remarkable 96 years old. Judge Pauline Newman was appointed to the court by Ronald Reagan more than 40 years ago. That is a remarkable term of service. Heck, at her age, she can rightly call both Biden and Trump “kids.”

The reason Judge Newman is in the news is because a panel of other judges on that same court has decided she will not be allowed to hear any cases for a year, as she has refused to undergo any cognitive or other testing to make sure her age has not affected her legal judgements. She, not surprisingly, resents the demand she be tested, and continues to refuse, even as the cases have been taken away from her.

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The issue of mandatory retirement ages has long been a contentious one. And there have certainly been cases of ageism in which perfectly capable people have been forced out of jobs they love because of an arbitrary age being reached that may or may well not have anything to do with how well they do their job.

To be clear: there are absolutely professions out there wherein the person practicing that trade should be unequivocally capable of doing the work. I don’t want, say, a pharmacist who has become blind and can’t remember doses anymore. I don’t want a surgeon who can’t remember which side the appendix is on (spoiler: lower right). But these are issues of capability and capacity, and not explicitly age. We can all think of people in their 80s who are remarkably capable, while also knowing folks in their 40s who are already unsafe for lots of jobs.

One of the few true mandatory retirement ages still out there is for airline pilots. For years pilots were forced to retire at age 60, which even before I reached my current ripe old age, I felt was too young. If there is one thing that improves piloting skills, it is experience. Is your flight facing heavy showers with some lightning and thunder rolling in? Give me a pilot with decades of experience, rather than a youthful and inexperienced pilot who has never faced such a situation before. Apparently, the FAA agreed, and not too many years ago, the mandatory retirement age was kept, but raised to 65, and there is currently an effort to raise it further to 67.

We’ve certainly seen quite aged individuals in the court system before, especially on the Supreme Court. Justice Clarence Thomas is 75, and though I absolutely question his ethics and judgment, I don’t think of him in any way too old to serve. But years ago, when the longest-serving Justice, William O. Douglas, was in his last couple of years on the court, he clearly had some cognitive impairments that raised concerns about his competency. Though the inner workings of the court are often shrouded in mystery, it appears that at least some of the other  court members worked to convince him to retire, as appears to now also be the case with Judge Newman.

The news media almost always gets it wrong when talking about the terms of members of the federal court. Almost always they talk about people selected to serve on a court “for life.” That is simply not true. The Constitution states these people are appointed to serve during terms of “good behavior.” That is very different from life. If these were truly life terms, judges would be unimpeachable and beyond any reproach. No, the Founders were smart enough to say, “good behavior,” so that a judge can, in fact, be held accountable should that judge, say, commit a crime or start seeing people that aren’t really there. And if age creates an infirmity that impacts reasoning, the individual would no longer be in “good behavior,” as per the Constitution.

And so, what should be done with Judge Newman?

I do think 96 is remarkably old. It’s reasonable to ask a person of that age in a position of great authority to take a test or two to ensure their judgment and mental acuity is still strong. Judge Newman’s ongoing refusal to take any such test by itself raises a red flag.

Though I am against ageism (especially as I age), I am not against reasonable safeguards in critical occupations. Judge Newman, and any and all other judges past, say, age 90, should demonstrate their continued ability by some sort of annual review. Heck, that same test could easily be given to judges in their 50s, just in case they are having early-onset issues.

I get such requests wound Judge Newman’s pride, and that is unfortunate. But when one is in a position to dramatically alter the lives of other Americans through their actions, it is not unreasonable to seek to ensure the decision makers are still at the top of their game.

We’ll see if I change my mind when I reach (perhaps) 96. I wonder if I will agree, or if I will be outraged to be asked the question.

Stay tuned in 2154.

Hal Bidlack is a retired professor of political science and a retired Air Force lieutenant colonel who taught more than 17 years at the U.S. Air Force Academy in Colorado Springs.