June 4, 2013

Should New York abandon mandatory retirement for judges aged 70?

70 for the highest court, 76 for some lower courts. There's a proposal to change this:
Some within the state’s judicial ranks have questioned [the] bill, saying it unfairly favors the high-level judges on the State Supreme Court and the Court of Appeals. Others counter that forced retirement encourages diversity, as older, white judges retire and are replaced by younger ones from minority groups....

Assemblywoman Weinstein pointed to a case where a “very vibrant” jurist was forced off the bench: Judith S. Kaye, longtime chief judge of the Court of Appeals, who stepped down in 2008 after turning 70.

In an interview, Ms. Kaye said she agreed that the retirement requirement should be changed. “When the age was fixed at 70, we were at a time when it was really old,” Ms. Kaye said. “Today, people are still very sharp and able — they are not statutorily decrepit.”
It was sad to see Judge Kaye needing to retire, but there's something to be said for moving judges along and bringing new people in. Here's the U.S. Supreme Court opinion that interpreted the federal Age Discrimination in Employment Act not to cover state judges. The Court — composed, of course, of judges who themselves could not be forced to retire — noted the rational basis for age discrimination against judges:
The people... have a legitimate, indeed compelling, interest in maintaining a judiciary fully capable of performing the demanding tasks that judges must perform. It is an unfortunate fact of life that physical and mental capacity sometimes diminish with age... The people may therefore wish to replace some older judges. Voluntary retirement will not always be sufficient. Nor may impeachment — with its public humiliation and elaborate procedural machinery — serve acceptably the goal of a fully functioning judiciary.

The election process may also be inadequate. Whereas the electorate would be expected to discover if their governor or state legislator were not performing adequately and vote the official out of office, the same may not be true of judges. Most voters never observe state judges in action, nor read judicial opinions. State judges also serve longer terms of office than other public officials, making them — deliberately — less dependent on the will of the people....

This is also a rational explanation for the fact that state judges are subject to a mandatory retirement provision, while other state officials — whose performance is subject to greater public scrutiny, and who are subject to more standard elections — are not. Judges' general lack of accountability explains also the distinction between judges and other state employees, in whom a deterioration in performance is more readily discernible and who are more easily removed.
That was written by Sandra Day O'Connor — who retired from the U.S. Supreme Court, after 24 years, when she was 76.

22 comments:

edutcher said...

How about 10 years on the bench and out?

Forever.

wyo sis said...

Mandatory retirement age for judges could influence who is appointed. If they turn seventy in the oppositions term you don't appoint them.

Bob Ellison said...

Do lower-court judges decide cases that require six years' more wisdom, or six years' less senility?

Nonapod said...

If we can't have term limits on judges at least we can still have mandatory retirements.

MadisonMan said...

I'm all for it if Legislators have the same mandatory retirement age.

(lightbulb)

You cannot contribute to your pension any more at age 70. Oh, the Govt will still take it, you'll just lose it.

Just disincentivize working longer.

Mitchell the Bat said...

You'd be amazed how many judges can't do math in their heads.

Mary Beth said...

The 70-year-old that existed in the 1890s is not the 70-year-old of today

I doubt there is that much difference, there are just more people who survive to that age now.

Crunchy Frog said...

Do lower-court judges decide cases that require six years' more wisdom, or six years' less senility?

If a senile lower court judge screws the pooch, it can be fixed. If that same old coot (or a collection of same) in the highest court in the state does it, there is no remedy.

madAsHell said...

Judges?? Hell, I'm more worried about driver's licenses.

Yes, I have to keep an eye on my mother.

MKBAR said...

I practice in NY so this attempt will have enormous consequences for me. Let me begin by pointing out that lawyers in NY call this the "Save Jon Lippman's Job" bill. Our current chief judge would be forced to leave the bench at the end of 2015, having served only about seven years of a statutory 14 year term.

I am not offended, in general, by the idea that the retirement age ought to be increased. What offends me about this proposal is this -- if I'm a state senator calculating my vote on confirmation and I know the nominee might serve only seven years rather than a full 14, I might vote to confirm on that understanding whereas if he were going to serve 14 years, I might vote not to confirm. After all, I might well want the seat to become open in seven years and allow a subsequent governor the chance to fill the seat.

In the end, I just think that if this thing happens, any sitting judge who has been appointed and needed Senate confirmation should have to go through the process again.

So, what I think is that

Susan Stewart Rich said...

Yes. Judges should not be forced to retire at 70. 40 is the new 30, 60 is the new 40. 70 is the new 50.

Richard Dolan said...

There is much to be said for the concept of term limits in every gov't office; sometimes they come in the form of an age limit like this one but they all have the commom effect of limiting any individual's hold on public power. We had the other kind in NYC for mayors and other officials, until Mayor Mike decided he wanted a third term.

The age limit for NY judges is in the state constitution, and has been there for a long, long time. Proposals like this one to change judicial age limits tend to falter, not for high-minded reasons about the loss of good people with lots of experience, but instead because governors are loathe to give up their power of appointing their own team to these offices. I suspect that the success of this one will turn on whether Gov Cuomo wants to see a change. If so, and assuming that the legislature went along with him, then it would have to be submitted to the voters.

damikesc said...

Others counter that forced retirement encourages diversity, as older, white judges retire and are replaced by younger ones from minority groups....

So, younger...minority...hey, I don't see "BETTER" here.

Wonder why.

Joe said...

How about 10 years on the bench and out?

I've long thought 20 years, but either would work for me.

Carl said...

If we can put up with the tragedy of the Twenty-second Amendment depriving us of the leadership of The One for another four years...or another forty, really, since he's quite young...the people of the great state of New York can put up with this.

hombre said...

When I hit 70 my mind wasn't what it used to be, but it was still easily good enough to be a judge.

PJ said...

It was sad to see Judge Kaye needing to retire

It was sad to see Judge Kaye retiring needlessly. I would support this bill if it meant her reinstatement; absent that, it's a cruel joke.

PJ said...
This comment has been removed by the author.
KenK said...

Term limits are a great idea. Especially so in one-party uncompetitive states like NY or states where judges are appointed.

Zeb Quinn said...

There's nothing like having a decrepit old fart of a judge fall asleep on the beach mid-trial (while a witness is being examined). It's a fitness issue, and ought to be decided on a case-by-case basis, in an ideal world. But there's a million reasons why it shouldn't, including some very compelling ones.

darkstar said...

This is just the Boomers wanting to change the rules to benefit themselves - again.

Anne Leah said...

Thanks for sharing your thoughts. I think that it would really depend on the person if when he retires. If He thinks he can still manage to work at the age 70, it's fine as long as he do his job well. There are seniors in retirement communities new york that are still active enough to work.