Forced Judicial Retirement, A Bad Idea

May 21, 2010

Approximately 20 states have mandatary retirement ages of between 70 and 72 for judges. Several others have mandatory retirement ages of between 70 and 75.

Nine states are currently considering legislation to increase or eliminate mandatory retirement ages for judges. New York is one of those states. In New York the mandatory retirement age for judges is currently 70 years of age.

State Senator Thomas Duane from Manhattan has requested the repeal of mandatory requirement ages for judges in the State of New York. Currently judges in New York state must retire when they turn 70. They can remain on the bench for up to three 2 year terms if they can prove their physical and mental fitness to continue serving in judicial capacity.

It will be necessary to amend the New York State constitution to change the forced retirement of New York judges. This will require two separately elected Legislatures to pass this amendment to the state constitution. It will then need to be passed by the voters in a state wide referendum before it can go into effect.

Federal judges do not have mandatory retirement ages. Many federal judges serve well into their 80’s.

United States Supreme Court Judge John Paul Stevens, age 90, has recently indicated he is going to retire. Justice Stevens had a remarkable career on the United States Supreme Court and his age has never slowed him down.

I regularly appear before Supreme Court Judges in their 70’s. They are experienced, dedicated, public servants should not have their judicial careers forcibly curtailed due to an antiquated forced retirement law. I recently celebrated my 60th birthday. Friends told me that 60 is the new 40. I have reflected on this suggestion. I now have20 more years of experience as an attorney now than I had when I was 40. I am better at almost every aspect in handling the rigors of my profession today then I was when I was 40. I suspect the same is true for judges with many years of experience. I urge the Legislature to quickly pass the law eliminating forced judicial retirement.

Elliot S. Schlissel, Esq.

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5 Responses to “Forced Judicial Retirement, A Bad Idea”

  1. Jim Maloney Says:

    I’m commenting to make note of a new (2010) book I’m reading, “The Secret Life of the Grown-up Brain,” by Barbara Strauch, which discusses recent scientific research findings from diverse sources that uniformly indicate that the aging brain in many ways GAINS in abilities, and that a lot of previously held notions about brain cell death, inevitable dementia, etc. are simply WRONG. Here’s one entertaining passage at page 9 in which the author quotes an acquaintance:

    “I hate it when people say they are having a senior moment,” said one woman I know in her early sixties. “People lose their keys when they are my age and they think it’s their aging brain. But plenty of teenagers lose their keys, and when they do, they just, well, they just say they lost their keys.”

  2. Interesting point! And certainly Justice Stevens, though we may disagree with him in many areas, certainly shows that old age does not necessarily equal loss of brain function.

    I’m still looking forward to hearing how the Chicago gun case comes out…

  3. Jim Maloney Says:

    Re Justice Stevens and incorporation of the Second Amendment in McDonald v. Chicago: given his dissent in D.C. v. Heller, I do hope he writes a dissent and not the majority opinion in this one!

    I expect that the McDonald decision, whichever way it goes, will be handed down during the Term’s last week in June. Synchronicitously enough, the author I wrote about in my earlier comment is speaking about here book at my local (Port Washington) library that very week, on Wednesday, June 23. See:

    Tying it all together, here’s a short passage from one my favorite Stevens dissents (in Morse v. Frederick, 551 U.S. 393 (2007), a case involving student speech that appeared to protest the current national prohibition on marijuana), in which Stevens displayed the sort of wisdom gained with age and the corresponding firsthand connection to history that he has by virtue of his age (to which he refers in this passage):

    “Reaching back still further, the current dominant opinion supporting the war on drugs in general, and our anti-marijuana laws in particular, is reminiscent of the opinion that supported the nationwide ban on alcohol consumption when I was a student. While alcoholic beverages are now regarded as ordinary articles of commerce, their use was then condemned with the same moral fervor that now supports the war on drugs. The ensuing change in public opinion occurred much more slowly than the relatively rapid shift in Americans’ views on the Vietnam War, and progressed on a state-by-state basis over a period of many years. But just as prohibition in the 1920’s and early 1930’s was secretly questioned by thousands of otherwise law-abiding patrons of bootleggers and speakeasies, today the actions of literally millions of otherwise law-abiding users of marijuana,FN9 and of the majority of voters in each of the several States that tolerate medicinal uses of the product, lead me to wonder whether the fear of disapproval by those in the majority is silencing opponents of the war on drugs. Surely our national experience with alcohol should make us wary of dampening speech suggesting-however inarticulately-that it would be better to tax and regulate marijuana than to persevere in a futile effort to ban its use entirely.”

  4. Jim,

    Thanks for your thoughts. I certainly also hope that Stevens didn’t write in the majority on McDonald as well!

    Do you also support the legalization of harder drugs than marijuana?

  5. David Kapner Says:

    I practice before many judges who are at or near the manditory retirement age. Most are as sharp as a tack and are at the the top of thier abilities. However, some judges do show signs of slipping. The ones who are slipping are either defensive about it or in denial. But for manditory retirement most judges, slipping or not, would never retire. Anyone who thinks that there is some objective way to determine if a judge’s mental capacity is failing is being unrelistic and naive.

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