Abolishing judicial retirement age needs rejecting

Yet another exercise in bad public policy joined others on the fall constitutional amendment election ballot this past session of the Louisiana Legislature which would decrease the quality of justice in the state.

HB 96 by state Rep. John Bel Edwards would repeal the age restriction on service currently for state and local judges. Now, they cannot run for office if they would be sworn into it after their 70^th birthday. This joins on the ballot a pair of other clunkers, one that locks the state into spending more on nursing homes even as their need becomes reduced, creates pressure for tax increases, and/or increases the threat of legal action against the state, and another that has the effect of increasing bureaucracy and the size of government with the establishment of an unneeded cabinet department.

Opposition mainly is driven by existing judges themselves, as they enjoy the job’s flexibility, stability, high rate of pay for work required, but perhaps most importantly because of the power they can wield politically, especially in rural areas, which allows them to parlay the infrequent elections to them into almost never losing reelection. Thus, they resent forcible retirement from these plum positions, and legislators are more than happy to assist them because among the roughly third of the Legislature that are lawyers, many eye post-legislative careers either as judges or elected to offices that work with them regularly.

Supporters of the idea of no mandatory judicial retirement age couch their arguments in terms of a limit being arbitrary and discriminatory against those wanting to be judges in that no other elective office has such a requirement. They say that rather than having a blanket restriction to reduce the chances of infirmity from diluting judicial decision-making quality, that sufficient internal mechanisms within the judiciary can police itself of this if this crops up.

However, an age limit carries more compelling benefits, many laid out by the U.S. Third Circuit Court of Appeals 1980 decision in Malmed v. Thornburgh. This overruled a lower court decision declaring that such state limitations unduly restricted rights of those individuals above an age limit from contesting judgeships. It decided that states had a number of valid reasons why they should have latitude to do this. They include the reticence of disabled judges to retire of for the state to pursue this where a limit might save government the effort and the judge embarrassment of going through a lengthy removal process, a desirable refreshing of human resources into this service as well as in a practical sense presenting opportunities for job promotion, creation of a cadre of retired but capable judges to fill where caseload demand or disability of other judges dictated, and the precedent set by other kinds of government employees having mandatory retirement ages. It also noted that capable judges on senior status actually could draw more compensation – not just the stipend for hearing cases on an ad hoc basis, but additionally their pensions forced upon them because of their retirements.

During committee hearings on a related bill, testimony emphasized an additional point: that in rural areas judges were better insulated from voters, making it more difficult for them to ascertain judicial fitness, and that if disability occurred without a retired judge in the area (presuming he was willing), it costs more to bring in a replacement from elsewhere. Also noted was that natural reluctance existed for the judiciary to police itself on these matters, verified in that in the past 15 years, only a very few judges were petitioned for removal from the bench by the judiciary’s enforcement arm the Judiciary Commission to the Supreme Court, apparently for chronic intoxication from drugs or alcohol. That none appear to have been discharged for senility speaks both to the effectiveness of the current limit and/or where it has happened of this reluctance to take such a public action, despite the costs it might have to the system of justice.

For while there are a number of practical reasons for this reasonable circumscribing of individual judges’ and voters’ options, maybe the best is encapsulated by a point emphasized by the Third Circuit’s ruling in noting the rationality behind Pennsylvania’s limit, in that one bad judge can undo the efforts of a hundred excellent ones. While an imperfect indicator, indisputably advanced age correlates with weakening performance, both mentally and physically. With justice in the balance and lives at stake, every effort must be taken to ensure that the highest quality of justice is delivered. With stakes so high, it’s not too burdensome to have older judges defer. Defeating this amendment reaffirms that worthy purpose.