In their article on assessment of judicial competence, Dr. Hamm and Professor Esplin engage a timely and complex challenge of societal concern: as our judiciary grays, sitting judges are more likely to experience cognitive decline. For the integrity of the judicial system and to maintain public trust, the central question the authors address is that of how judges' competence to serve in their roles of deep public import can be assessed and ensured against a backdrop of life tenure. Examples of “open secrets,” cases in which colleagues and attorneys have concern about a sitting judge's behavior and or performance, serve as illustrative examples of the shortcomings of self-regulation within the judiciary. Specific challenges of self-regulation for judges include power differential between judges and attorneys, lack of knowledge about cognitive decline and associated symptoms by judges, the potential for individual judges to have limited awareness of declining cognitive capacity due to the symptoms of progressive cognitive decline, and reluctance of colleagues to report due to fear of negative consequences or loss of collegiality.

The authors' central argument is that “cognitive specialists,” in particular psychiatrists and neurologists, could serve an important evaluative and regulatory role through voluntary reporting of judge patients with evidence of impairment on examination. In such a model, interprofessional expertise could provide clearer and more nuanced data about the cognitive functioning of judge-patients. To facilitate this exercise, the authors argue for exemption of physicians from liability, civil and criminal, for good faith reporting of judicial impairment.

While the recommendation that expert assessment of cognitive functioning could improve the detection of functionally significant cognitive decline in judges, other factors relevant to the authors' proposal are worth considering, including: a blurring of clinical and third-party (forensic) evaluative roles and responsibilities for “cognitive specialists;” insufficient data about the relationship between age-expected (even predictable) cognitive decline, earlier stages of cognitive impairment and dementia, and actual functional impairment in the discharge of judicial obligations; and, finally, lack of a coherent structure for ensuring that examinations are conducted and reported.

First, in clinical settings, the primary duty of the physician is to the well-being of the patient vis-à-vis the patient's health and current condition. Situations in which physicians may have legal and ethical permission (or even imperatives) to breach confidentiality in the interest of public safety or policy are incidental to the primary goal of patient care.^{Reference Brendel1} While there may be value in ensuring the integrity of the judiciary through encouraging physicians to report obvious and grossly functionally significant cognitive deficits and impairment in patients who are judges, this approach may not fully address the broader concern about judicial competence. As a starting point, there is no guarantee that a judge would seek medical evaluation of any kind. Additional requirements for cognitive screening and medical evaluation would be necessary, and even so, tasking treating physicians with the role of assessing judicial fitness is a complex task. The role of translating clinical findings in normal brain aging or early stages of cognitive impairment into determining possible impairment in judicial duties is a specialized function that requires not just clinical examination in the office, but also collateral data about judicial function, behavior, and the demands and supports within the judicial role. These evaluations would be best performed by independent experts, who are retained by and report to a third party, perhaps a judicial oversight board, due to the need for access to collateral information about performance and the need for clear standards to guide the findings related to functional impairment in addition to diagnosis and clinical recommendations.^{Reference Wettstein, Gold and Vanderpool2} In addition, judges' personal physicians may be less objective in their assessments of function due to loyalty to longstanding patient relationships and deference to the perceptions of their esteemed patients. For reference, examples of third-party evaluators would be physicians providing flight physicals for pilots and independent medical examiners performing disability evaluations.

In the case of judicial performance, the types of collateral information that could be relevant to an informed assessment may require additional expertise or development such as review of opinions by legal experts or judicial colleagues, rate of overturned decisions, and review of courtroom transcripts for language use and assessment of behavioral aberrations. This information would be beyond what even a “cognitive specialist” could assess in the office, could require additional specialized testing such as neuro-imaging or neuropsychological testing, would require collaboration between the evaluators and the judiciary itself, and would demand additional work to design effective and reliable evaluative tools and metrics to assess judicial function in light of age-expected declines in processing speed and working memory as well as possible signs of emerging dementia. Shen has suggested the importance of designing and developing a tool to assist in the determination of judicial competency³ — however, practice still needs to be honed and research conducted to identify what the elements of any assessment device would be in determining early stages of cognitive decline to prevent progression to a point of judicial incapacity. As a further practical matter, while engagement of “cognitive specialists” could add to an assessment of diagnostic clarity and specific areas of deficit, analysis of validated performance metrics could over time become a sufficient body of information from which to make judicial capacity determinations.

Finally, any effective system of screening, evaluation, and monitoring would require a framework and infrastructure. A fundamental parameter that would need to be set would be the trigger for an evaluation of cognitive function. Would every judge be subject to some regular screening over a career or would regular assessment and monitoring begin at a certain age? Would there be an ongoing presumption of capacity to serve in the judicial role or should there be a rebuttable shift in presumption of ability to serve at a particular age or other milestone? Routine screening or evaluation, even with a cutoff age for initiation of screening, could be time consuming and costly for the judicial system, individually intrusive for each judge, and, as of yet, of unproven efficacy. Alternatively, would the model require some “cause” for initiation of a cognitive-functional assessment? For-cause assessment could be less intrusive and resource-intensive on a systemic level, but would it adequately ensure the integrity of the judiciary or instead merely provide a removal process and remedy once a judge has already progressed well beyond the threshold of incapacity? Furthermore, the question of who would be tasked with making a report of a cause to initiate evaluation is centrally relevant given the reluctance to report and limitations in the current system of self-regulation as described by Hamm and Esplin.

In summary, interprofessional expertise could contribute to the assessment of performance capacity in the setting of the aging judiciary. Were the role of “cognitive specialists” to be engaged in any meaningful way, however, a system of evaluation would need to go beyond a voluntary reporting framework to include comprehensive assessment by specially trained medical professionals authorized to perform a functional assessment, with access to relevant functional data related to judicial performance. The metrics for these evaluations, as well as the framework for seeking evaluation, would require additional elucidation and study to ensure effective and efficient operation. Without such a process and structure, the problem of waiting until cognitive decline has risen to the level of there being an open secret about major judicial impairment will not be solved. Yet this specialized assessment would be burdensome and intrusive, at least until sufficient data might be gathered to inform an effective yet less demanding screening tool.

An investment into cognitive assessment that would promote public trust in the judiciary might, in the end, be worthwhile given the major responsibilities of the judiciary for our society. But such an investment would need to be accompanied by an improvement over the status quo to be justified and might additionally garner support with the prospect of development of a broadly applicable and less intrusive screening tool. The authors' addition of voluntary reporting of judicial cognitive decline by physicians might add some measure of identification over the status quo. Overall, as the human lifespan increases, the challenge is upon us to both develop measures to prolong cognitive function and to determine how to protect the integrity of our public institutions amidst the present inevitability of cognitive decline with aging.