Age is a relative thing.  When I was 30, 50 seemed ancient.  Not anymore.  I have friends in their 60s, 70s, even 80s.  I have no friends in their 90s.  You have to draw the line somewhere, right?  Not according to the Chief Justice of the Illinois Supreme Court, who authored the opinion striking down the state’s mandatory retirement age of 75 for judges on the complaint of Cook County Circuit Judge William Maddux.

The decision, grounded on equal protection, is hardly what one would expect.  Justice Freeman did not conclude that the state law mandating retirement at age 75 was arbitrary and capricious, under the theory that there is nothing about the age of 75 that creates a presumption of unfitness for the position, lacking the stamina and vigor demanded of a judge. 

Rather, the decision picks apart the law which mandates “automatic retirement” of a judge at the end of the term in which a judge attains the age of 75, while permitting a person age 75 or older to run for election, de novo, as a judge.  This, Freeman concludes, makes no sense and violates equal protection.  As it happens, it also dodges the bigger question.

Clearly, judges can function beyond the age of 75 years.  Supreme Court Justice John Paul Stevens is now 89 and still puts up a decent fight.  But should they?  And what of those judge’s whose mental faculties diminish slowly, incrementally, without doing something so egregious as to compel their being thrown off the court?  Or the problem with judges losing touch, whether with evolving societal norms, or perhaps technology, or, worse still, reality?

On the one hand, political correctness demands that we pretend that age plays no role in how a person functions.  But as a guy getting older, and watching his friends and family get older,  For some, age tempers hard positions, allowing people to see the world in a more empathetic, less dogmatic way.  For others, age takes the bias of youth and personal experience and hardens it until the mind has closed completely to any new thought.  This changes from person to person, and there is neither a specific personality type nor age where things get ugly.  It also changes by subject matter, where people soften on some issues and harden on others, or demonstrate far more attention to things that interest them, yet appear to zone out when it comes to something that doesn’t.

Considering the job we expect of a judge, it’s hardly acceptable to allow our concern for political correctness to trump our demand for justice.  No judge has a right to remain on the bench after his ability to fulfill the demands of the job have diminished.  And truth be told, age plays a role for many who wear the robe, though not all and clearly not always in the same way.

So do we rid ourselves of the judge who has garnered and maintained respect and admiration for wisdom, propriety and justice, because she’s reached a ripe age?  Do we toss out the good with the bad?  And if so, where should the line be drawn?

And just to muddy up the waters a bit more, consider the implications for new blood in the system.  If we keep the old folks on the bench forever, it uses up the seats that would otherwise become available for new, younger judges.  This would have a deleterious affect on political parties, leaving no one to lick envelopes in the hope of getting the nod for the next judicial election.  And where would party leaders get their “walking around” money?

The mandatory retirement age for judges in New York is 70.  Ten years ago, that struck me as a bit young.  Today, it seems ridiculously young.  The state task force reached a similar conclusion in 1997, with nothing coming of it. 

Still, I would be afraid of the elimination of retirement age altogether, given that I’ve experienced some judges who haven’t aged well and, frankly, would be nearly impossible to get rid of despite having gone well beyond their shelf-life.  It’s extremely unlikely that they would leave on their own, particularly since part of the aging process is to seek continued usefulness in the face of declining faculties.  And few have the will to force a judge well past his prime to leave the bench, as a matter of courtesy if not fear. 

There is much to be said for vigor and open-mindedness.  There is much to be said for experience and maturity.  There is much to be said for putting an end to a reign of terror.  But I don’t know where to draw the line, and it’s become an increasingly difficult problem with each passing year.