November 6, 2013

Why did New Yorkers decline — by a huge 61 to 39% margin — to end age discrimination against judges?

My answer: Because it wasn't phrased as an end to age discrimination. It was phrased at raising the retirement age to 80. It's currently 70. I think prompting people to think of judges as old as 80 brought on a skepticism that a kinder, gentler notion of not discriminating might have masked.

From the NYT article:
Proponents of the amendment argued that the age limit of 70 for judges, set in the State Constitution, was an anachronism passed just after the Civil War, before the era of antibiotics, heart surgery and hip replacements. People are living longer lives, proponents said, and judges often peak late in their careers.
Wouldn't that be a reason not to bother with an age limit back in the 1800s? Judges lingering in office would have been less of a problem back in the days when medical setbacks led more predictably and swiftly to death.

The chief judge of the state's highest court, Jonathan Lippman, said:
"I am disappointed... We were unable to get a consistent message across that people should be judged on their ability to do the job and not on some outdated conceptions of age."
What is outdated about thinking that older persons hang onto their jobs too long and fail to open positions to younger persons with new perspectives and experience with life as it is lived today? What is outdated about thinking that judges, cloistered and cosseted by the respect their office commands, lack accurate feedback about how well they are really doing? What is outdated about thinking that the judges, with their sharp and hardworking ghostwriters (AKA "clerks"), are unusually shielded from having their failing competence exposed?

29 comments:

Ambrose said...

As a NY'er I proudly voted against rasing the retirement age for exactly the reasons you cite. I love the Lippman quote. "We were unable to get the message across." No, you got the message across just fine; we just don't agree with you.

Tank said...

In NJ Judges who age out at 70 and retire are often immediately recalled on a "temporary" basis to continue doing just what they were doing before. Often they are temporarily recalled for years.

It's weird to go to (or read about) a retirement dinner, then the next day you run into that Judge in the elevator of the Court House.

Tank said...

Oops, forgot to say, that doesn't seem like it should be legal.

Which lawyer wants to take that question to Court before the Judges he'll have to appear before in the future?

PB Reader said...

"Outdated" is merely a claim to make when you have no factual data or objective standards by which to measure performance.

RM said...

Just to point out that NY state judges do not have either "sharp" or "hardworking" ghostwriters. They are assisted by so-called law secretaries, who, unfortunately, are generally patronage appointments seeking Democratic party imprimatur to run for office themselves.

Basil said...

Term limits by other means. Never understood why the Republicans gave up on this very popular idea. Well, I understand why, but it seems really dumb.

rcocean said...

States should have term limits rather than age limits.

Give judges one 18 year term. That's enough.

Richard Dolan said...

Teh Althousian take is all policy, no politics. But in NY that equation is backwards. As it happens, this seemingly simple measure (which I voted for) had a complicated political backdrop. Gov Cuomo wasn't behind it (many thought he was very much against it) because, if it had been adopted, he would have lost the opportunity to appoint several judges to the NY Court of Appeals. In particular, Judge Robert Smith, a conservative but very able judge (and former Paul Weiss partner) appinted by Gov Pataki, will have to leave the court next year when he turns 70, not only creating a vacancy but also allowing Cuomo to appoint a fourth Dem (currently the court is divided 4 Reps and 3 Dems).

Whether the Dem machine is in favor of one of these ballot initiatives matters quite a bit in NY (much more so than whether the NYTimes endorses a measure, as they did this one).

Richard Dolan said...
This comment has been removed by the author.
Sam L. said...

Ain't nothin' outdated about any of those, Prof.

David said...

My question is, to what job do Althouse's points not apply? Isn't this just an argument against making age discrimination illegal?

Christy said...

Perhaps a majority of voters have an aging relation in stubborn denial of faltering faculties? We take delight in our sharp old uncles, but the ones who are losing it cause many many problems, particularly when they are smart enough to fake it.

Seeing Red said...

People should be judged on the ability to do the job?

That's so 20th century thinking.

CatherineM said...

As someone who voted NO, it was not for discrimination, it was for term limits.

bbkingfish said...

One of the Federal Judges in our district (Western PA) was appointed by President Ford. Before than, he was a judge at the state level, and at the county level (both elected positions). His name has been a fixture in the local news since I was in grade school, and I become eligible for Medicare next month.

Cedarford said...

rcocean said...
States should have term limits rather than age limits.

Give judges one 18 year term. That's enough.

------------
Sounds good.

Would be great to end the "Lifetime Appointment" Federal judges get, but everyone knows the Constitution is broken because it is now un-Amendable. On any matter of real dispute, special interests have long learned how to derail any Amendment proposed. The last Amendment passed with any substantial opposition was the elimination of the poll tax in 1962. Over 50 years ago.

You will need a Constitutional Convention to fix our archaic paper back into a modern, functioning framework for running a less dysfunctional government and legal system than we have now.

And the other path we know use since Amending is broken - relying on judges to change the Constitution by divining new interpretations and emenations and penumbras? Good luck getting a bunch of aged judges to agree to cut their own throats and give up their cushy sinecures.

Average age of Fed judiciary - 62.2 years.
12% of sitting judges are now over 80. Many in "senior status" meaning no or reduced workload. 3 assistants instead of 4, but with full pay and benefits.

elkh1 said...

Those who feed at the public trough never want to stop.

madAsHell said...

Dementia never announces its arrival.

MnMark said...

What is outdated about thinking that older persons hang onto their jobs too long and fail to open positions to younger persons with new perspectives and experience with life as it is lived today?

A young person ONLY has experience with 'life as it is lived today.'

An old person has experience with life as it is lived today AND life as it was lived yesterday. They have perspective and maturity that the young don't. Those are the qualities we want in a judge, right?

MnMark said...

Amending the Constitution is not "broken". It is working exactly as it was intended to; we are a deeply divided country and thus no one side of a dispute should have the power to amend the Constitution just because they happen to momentarily have a bare majority.

If you can't get two-thirds of Congress and 3/4 of the states to agree to an amendment then you will just have to keep making your case until you do, or until you recognize that your proposed amendment is not what the great majority of Americans want. So you have no business imposing it on them.

Mrs Whatsit said...

Richard Dolan has the political aspect of this about right, as far as I can tell. An additional reason for the effort to raise the retirement age -- not so political -- was the painful loss a few years ago of the state's previous Chief Justice, the brilliant, highly-respected and immensely capable Judith Kaye, as a result of the age limit. She was not remotely senile then or now; she's of counsel to Skadden Arps and still a major force in the NY legal world. Before long, we'll lose the current Chief Justice, Jonathan Lippmann, for the same reason, likewise with no hint of any need.

I don't really have a dog in this race, but the current system does not make much sense (not that many things do here in NYS.) Some judges, but not all, can "recertify" for three two-year terms after turning 70. Recertified judges can preside over cases but can no longer occupy administrative or leadership roles. This seems illogical. If a judge isn't too old to run a courtroom, why preclude him or her from using years of experience and maturity in leadership roles?

Of course, it did not help matters one bit when it was disclosed that some judges -- not all of them -- were retiring before they recertified and then double-dipping by collecting both pensions and salaries. Many voters likely confused that little, um, embarrassment with the separate issue of forced retirement.

I was going to point out that RM, who previously posted some nonsense about "law secretaries," does not know what he's talking about, but I see he's deleted the comment. Just in case anybody read it before it vanished, there's no such position in New York --although the title standards list some 19 different varieties of the "law clerks" RM thinks we don't have. RM's nasty views of the abilities and ethics of the people who hold those positions were probably about as reliable as his knowledge of their titles.

jr565 said...

Age discrimination is term limits by another name But see how, if youre against the latter then it's common sense and if you're for the former then you are a bigot who hates old people! Discrimination!

jr565 said...

As a NY'er I proudly voted against rasing the retirement age for exactly the reasons you cite. I love the Lippman quote. "We were unable to get the message across." No, you got the message across just fine; we just don't agree with you.


Ergo, you are an old person hating bigot.

PJ said...

What makes Lippman think people didn't vote based on the job he's doing? If Mrs. Whatsit's lavishly adjectived Judge Kaye were still in charge, I think Prop 6 would have passed. It's a wicked slander against NYers to chalk this up to widespread age discrimination. It was personal.

From Inwood said...

R Dolan

One of the best things about an Althouse thread is that there is usualy someone who can explain things that the low-info or unconcerned voter is fooled about (here who gets what). You have educated these folks & many on this thread here if they want to be educated. Cuomo is salivating at the chance to sppoint a new judge to NYS's highest court & justices to the intermediate & lower ones.

Tank

In NY it used to be (don't make me look it up) that trial court judges upon reaching age 70 could be re appointed for two year terms up to age 76 if they could fog a mirror. But the old position was then available for the party bosses to fill. Not sure how that worked for appellate judges since those courts are limited in size & age 70 meant that one was off the higher courts.

C4: Fed Senior Status at the trial level means 2/3 of pay & the position they left is opened for the party to fill. I understand that, upon his reaching age 70, the father of a good friend of mine who was a distric court (trial) judge was "encouraged" to take senior status for the good of the party & did so, acting as a magistrate 'til the end of his days

At the appellate level,

- Certainly a SCOTUS justice is gone from that court when he/she gives up the position. Don't know if one can continue to serve in some senior status in a lower court.

- I think (may be wrong) that the justices on the circuit courts can continue to serve as such under some conditions of senior service.

sykes.1 said...

Judges do not actually retire. So-called retired judges are still assigned cases but on a reduced frequency.

Actually, a mandatory retirement age of 65 or 68 should be imposed on everyone to get the deadwood out.

We should also find make work for people on welfare. The Soviets used to round up all the babushkas and make them sweep the sidewalks. The gang-bangers could be rounded up and put to all sorts of useful manual labor, either under the direct supervision of the government or rented out.

Mountain Maven said...

In California term limits on legislators doesn't work because the voters keep electing the same kind of people to replace the ones termed out.

TheCrankyProfessor said...

As a 51 year old professor who voted NO, I'm not afraid of admitting that I was discriminating against the Gerontocracy. I don't care about Cuomo's short term political goals of appointing Democrats -- I want to turn all the oldsters out to pasture, however sharp they believe themselves to be. American universities are crippled by the refusal of so many old people to GO AWAY - and I'm sure the judiciary is, as well.

TheCrankyProfessor said...

As a 51 year old professor who voted NO, I'm not afraid of admitting that I was discriminating against the Gerontocracy. I don't care about Cuomo's short term political goals of appointing Democrats -- I want to turn all the oldsters out to pasture, however sharp they believe themselves to be. American universities are crippled by the refusal of so many old people to GO AWAY - and I'm sure the judiciary is, as well.