GateHouse: Voters to decide how old is too old for a judge

Matthew T. Mangino

GateHouse Media

October 28, 2016

Voters in Pennsylvania and Oregon will have a chance to decide how old is too old to be a judge. Pennsylvania seeks to extend the date of mandatory retirement from age 70 to age 75. Oregon seeks to end mandatory retirement altogether, much like the federal bench.

According to the National Center for State Courts, 32 states plus the District of Columbia have a retirement age for judges; most use 70 as the threshold, and the remaining states use either 72, 74, 75, or in the case of Vermont, 90.

For nearly 20 years state legislatures across the country have tried to increase or abolish mandatory retirement for judges, with mixed results. Since 1990, at least 11 states have tinkered with mandatory judicial retirement. In fact, the Virginia Legislature had tried unsuccessfully for seven consecutive years to increase the mandatory retirement age for judges, until finally succeeding in 2015. Federal judges have no age restrictions. The Constitution grants federal judges a lifetime appointment as long as they maintain “good behavior.” Since that language was written in 1787, average life expectancy has more than doubled, to almost 80, and the number of people who live beyond 100 is rapidly growing. According to the New York Times, nine of the 10 oldest practicing federal judges on record have served in the last 15 years.

According to an investigation by ProPublica, as of January 2011, 12 percent of federal judges were over age 80 — that is about 150 judges — and 11 judges were over the age of 90. Should there be concern about judges serving into their 70’s and 80’s? According to one study, by age 70 most people are cognitively impaired and half of all 85-years-olds have dementia. As I have written here in the past, the cognitive functions most affected by age are attention, memory, language processing and decision making — fundamental skills in any courtroom. Federal judges are nominated by the president. Most state judges are elected. State judges campaigned for office knowing their terms were limited by mandatory retirement. Now they want to change the rules, a process that is often cumbersome and may include amending the state’s constitution. Pennsylvania is one of those states.

According to Stateline Magazine, the only way to change the retirement age of judges in Pennsylvania is to change the constitution. A change in the state constitution requires that an identical bill pass both chambers of the Legislature two sessions in a row. The measure must then win a popular vote in a statewide election.

States that require constitutional amendments to change retirement ages for judges have appeared on ballots 11 times in 9 states since 1995 and almost all have failed, including Arizona in 2012; Louisiana in 1995 and 2014; Hawaii in 2006 and 2014; New York in 2013; and Ohio in 2011, according to the National Center for State Courts.

To further complicate things, the language on Pennsylvania’s ballot is misleading. The ballot question asks voters whether they would approve mandatory retirement for judges at the age of 75. The question does not make it clear that the mandatory retirement age in Pennsylvania is currently 70 and that voters are being asked to extend retirement by five years to 75.

An unsuccessful lawsuit attacking the language alleged, according to the Philadelphia Inquirer, “The ballot question … is misleadingly designed to garner `yes’ votes from voters who are actually in favor of restricting the terms of judges and justices, but are unaware that the proposed amendment will have the opposite effect.”

Voters in Pennsylvania also face a curious dilemma on Election Day. On one portion of the ballot votes are being asked if 70 is too old to be a judge and on another portion of the ballot voters are being asked to choose between two major party candidates for president, one age 70 and the other 69.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book, “The Executioner’s Toll, 2010,” was recently released by McFarland Publishing. You can reach him at mattmangino.com and follow him on Twitter at @MatthewTMangino.

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