Proposition 6 in the last New York election proposed to raise the retirement age for some New York judges from 70 to 80 years of age. It lost. Well, not just “lost,” but was slaughtered by a margin of 61% to 39%. Chief Judge Lippman raised the proposition for sound reasons, the need for judges to handle the caseload crushing the system and to end the anachronism of a relatively young retirement age and the only retirement age imposed on any government official.
That rule is out of date, Judge Lippman says, enacted just after the Civil War, long before the age of modern medicine, when merely living to 65 was considered a feat. The age limit has deprived the New York courts of great legal minds in their prime, he says, among them former Chief Judge Judith Kaye.
“It’s an anachronism in the year 2013 to have a constitutional presumption of senility at age 70,” Judge Lippman said in an interview. “To me, it’s bad public policy. It’s bad for the courts. It’s bad for the public to make experienced judges leave the bench when they are at the top of their game.”
So it was put to a vote and got crushed. Democracy in action. While I voted in favor of the proposition, I was largely ambivalent. I know too many judges who stuck around beyond the expiration date. On the other hand, as I get older I realize that 70 just isn’t very old, but that’s a matter of my personal perspective. There was a time when 50 seems pretty damn ancient.
But Wally Olson at Overlawyered brought a post by Angry Blond lawprof Ann Althouse to the fore, which cast a disturbing light on an otherwise mundane issue. Challenging Judge Lippman’s contention that this civil war era retirement age was outdated, Althouse wrote:
What is outdated about thinking that older persons hang onto their jobs too long and fail to open positions to younger persons with new perspectives and experience with life as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 What is outdated about thinking that judges, cloistered and cosseted by the respect their office commands, lack accurate feedback about how well they are really doing? What is outdated about thinking that the judges, with their sharp and hardworking ghostwriters (AKA “clerks”), are unusually shielded from having their failing competence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?
This changes the question from one of the proper retirement age, if any, of a judge to the nature of the position of judge. Is it the sort of position where new blood is better than experience? Are judges too out of touch after having been “cloistered and cosseted” for too long? Are they immune from the normal feedback that the rest of the world gets when they do their job poorly? Do they survive only because they are shielded by the real power behind the throne, their clerks?
Whether a judge is 50 or 90, these questions apply. And anyone who has been around for a while can identify judges who sucked from the start and were brilliant to the end. That judges in the digital age are sadly clueless, and thus making law about things they don’t, and frankly can’t, truly understand has become painfully clear.
And that there are judges who either should never have gotten the gig in the first place, or turned sour, lazy or mean over time, is undeniable. Angry Ann raises some good questions, even if they don’t really have much applicability to the issue at hand.
One of the weird things that happens as one ages in the profession is that people we know in one capacity eventually end up as judges. Unlike young lawyers, whose perspective is based solely on what sitting judges do from the bench, old lawyers know what they were like before we had to pretend to laugh at their jokes. If they were dopes before, they don’t get brilliant later. If they were lazy back when, they aren’t diligent now. Some were pretty nasty and ignorant in their first job out of law school, and are still nasty and ignorant in their second.
The problem is that there are very few judges, very few, who you would want to be judges. There are many lawyers who you would think should be judges, and would make damn fine judges, but these aren’t the sorts who end up as judges.
They don’t kiss ass enough or lick envelopes when the county political leader needs them. They actually worked in the trenches, and dirtied their reputations with ugly cases and evil clients. They fought hard and made enemies along the way. They weren’t inclined toward being “official people,” seeking meaningless titles from worthless organizations. Their lives weren’t dedicated to making politicians and powerful people like them so they could free ride on the bench.
And most notably, they don’t seek to be judges.
The question of age has little to do with the problem of being a person who has no place sitting in judgment of others. Judging isn’t a job, though that’s the way too many see it. It’s a responsibility, a burden. We shouldn’t congratulate someone upon being a judge, but give our condolences. If they do it right, it should be a terrible burden on them. To be forced to decide the fate of others is to court misery. There is little happiness presiding over the harm we do to each other.
But the notion that old judges should move out so young judges can fill their robes is naïve. It ignores the virtues of experience and institutional memory. If judges messed with laws the way fashion designers change hemlines, it would be a disaster. If this isn’t obvious, then you don’t understand how law impacts society.
So I really don’t see any argument favoring judges on the basis of age, aside from not making anyone a judge until they have sufficient life and legal experience to realize the nature of the duty they’ve undertaken. It’s about having good people become judges rather than young or old people become judges. And we do a fairly poor job of it, more likely getting good judges by accident than design. That’s the problem that needs fixing, but there was no proposition on the ballot to cure this disease.