The assignment of presiding over the trial of Nicolás Maduro falls to Judge Alvin Hellerstein of the Southern District of New York — by all accounts an excellent jurist who happens to have been born in 1934, making him 92 years old. That is entirely too old for Jeffrey Toobin, who writes in the Times that Judge Hellerstein “must step aside” because he is “is simply too old, in my view, to preside over a matter of this magnitude.”

That’s not the Constitution’s view. Judge Hellerstein, who was appointed to the bench by President Clinton, is one of our Article III federal judges who, the parchment ordains, “shall hold their Offices during good Behaviour.” That means that their appointments are for a lifetime, should they choose to serve that long. Judge Hellerstein assumed senior status in 2011, but has continued to serve. Mr. Toobin reckons that is “to his credit.”

Mr. Toobin laments that “a culture of deference — and the fear, especially among active lawyers, of courting retribution — limits most inquiries into the abilities of aging judges.” He cites press reports of Judge Hellerstein  nodding off during the criminal fraud trial of Charlie Javice. Mr. Toobin acknowledges that the “parties can ask a judge to recuse himself for bias, but that is not the issue here.” 

Mr. Toobin proposes that the chief judge of the Southern District of New York, Laura Taylor Swain, make an “overture” to Judge Hellerstein to step aside “if he does not himself recognize the need to face reality.” Mr. Toobin also worries that Judge Hellerstein will be asked to decide “highly consequential issues under enormous public scrutiny.” Judge Hellerstein knows from public scrutiny — he has presided over cases that concern 9/11 and Harvey Weinstein.

Not to mention matters related to the Stormy Daniels prosecution of President Trump, matters related to detentions at Abu Ghraib, and more. Mr. Trump, no reflexive booster of the bench, admitted aboard Air Force One that Judge Hellerstein is “very respected.  We’ll see how we do.” The president of the New York County Lawyers Association, Richard Swanson, tells Bloomberg that Judge Hellerstein is “a real believer in due process.”

Judge Hellerstein is also, relatively speaking, something of a spring chicken. At least in comparison with Judge Wesley Brown. He was a United States district judge in Kansas. He served until his death in 2012 at the age of 104. He was nominated to the bench by President Kennedy in 1962, took senior status in 1979, and vowed to leave the judiciary “feet first,” which he achieved. The suspension of Judge Pauline Newman has prompted constitutional challenges.

That brings us back to the Constitution’s requirement that judges “shall hold their Offices during good Behaviour.” The Supreme Court in U.S. Term Limits, Inc. v. Thornton struck down an attempt to impose term limits on federal lawmakers in Arkansas. The League of Women Voters challenged that initiative as unconstitutionally adding to the Constitution’s qualifications. The high court, by a five to four margin, agreed. 

Now it appears as if Mr. Toobin wants to tinker with the constitutional text by adding an age qualification that the Framers foresook. We have great regard for Mr. Toobin, but here it looks like James Madison and the boys have the jump on him. And on President Biden, who proposed term limits for Supreme Court justices. Anyone is free to pursue an amendment. Absent that, though, it’s hard to see how special restrictions could be laid for a high-profile defendant.