A legal Gerontocracy?

There's a bill pending in Wyoming's legislature which proposes to remove the mandatory retirement age for the judiciary, which is presently 70 years old.

The cited reason for this bill, which has passed at least one reading in the house, and which I guess will pass, is that the sponsoring legislators were distressed by a relatively recent retirement of a Wyoming Supreme Court justice, whom they regarded as a legal treasure.  Of course, that cited basis is somewhat insulting to the newly appointed justice, but apparently they aren't so worried about that.  They claim, at any rate, that Wyoming's mandatory age 70 retirement means that great legal minds are being deprived from continuing on in the judiciary because of an arbitrary retirement age.  Fans of such legislation also tend to note that people are living, and working, much longer than they used to.

They ought to rethink it.

All of the cited basis for the legislation may well be true.  But equally true are a hosts of physical and social reasons why this is a bad idea.

First of all, I'm not stating that people shouldn't work past age 70 if they want to. That's their own business, if they work in the private sector.  But in the public sector, and particularly in a position of great importance in which the worker was appointed by the Governor, it's another matter entirely.

Most people, even now in our modern age, do not escape the ravages of time. We all hope to, but very few of us really do.  The impacts of age and infirmity impact different occupations differently.  It's rare, for example to find a 40 year old rig hand, they're just too old, just as its rare to find a 40 year old professional football player. The body cannot handle it.  For mental occupations, however, 40 years old might be young.  A 40 year old Governor is extraordinary rare.  Barrack Obama, Theodore Roosevelt and John F. Kennedy were all regarded as young Presidents, where as they'd otherwise be regarded as middle aged men during those same time periods.  A 40 year old judge is not uncommon, but still fairly rare.  A judge appointed at age 40 will have been practicing law for about 15 years, not a particularly long legal career, and just five years past the point where most practicing lawyers regard a lawyer as proficient.  I've known quite a few lawyers who were still practicing law at age 70, or even 80.  So what's the problem?

Well, one of  the problems is, for a cerebral occupation, some people's minds will begin to go starting in their 50s, but it will not really set in until their 60s.  Quite a few people, so many that's its regarded as a massive public health crisis, begin to suffer from dementia in their 70s or 80s.  Generally, a high percentage of people who suffer from these conditions have a bare inkling when the problems commences, but they have no real idea that they've slipped into it.  It might not be so obvious to others recently.

Indeed, I've experienced that personally.  My mother has fronto temporal dementia.  She cannot live on her own, at age 86, and has not been able to for two years.  But she seemingly remained sharp enough up until about age 80.  Oh, there were signs, but not so much that I was willing to believe them.  Her decline, in the end, came on extremely rapidly and very traumatically.

Surely this is not a problem for an older judge, correct?  After all, it's been pointed out, there's a process to remove a sick or disabled judge.  Well, in order to invoke that process, the judge has to be noticeably sick or disabled, which is not like flipping a switch.

Indeed, I have a couple of lawyer friends, now in their 60s ,who have remarked to me on more than one occasion how their memories were just shot.  One is practicing, the other is not.  The one who is not was frank that he had to quit, as his memory just couldn't match the requirements of the work.  Prior to that he had given up adversarial proceedings, as his memory was no longer suited for it.  That's admirable, but even today I can only barely tell that this is his condition.  I can, but only barely.  I can also, with the lawyer that remains in practice, and has no intention of retiring.

Several years ago I tried a case against a lawyer that very clearly was suffering from some sort of mental decline in his advanced age.  He was in his 70s.  His clients must not have noticed it, and the Court certainly did nothing about it.  His representation of his clients was bizarre to some degree.  And many years ago I had a case against a lawyer who ultimately withdrew from representing his client, who actually was so infirm he fell asleep during a deposition.  In none of these cases did anyone step in to cause the lawyer to step down.  I don't think, by and large, that average people necessarily grasp that a lawyer's skills are declining, and I'm not sure that any of their colleagues are willing or able to do anything about it.

All of that, of course, is from private practice, which people have a right to keep doing. But in a public trust would things be much different?  I doubt it.  And if they were, it'd be at the point where things were so bad that the only thing we'd later remember about that judge is that he had to be removed for mental infirmity. 

And that's just the most obvious case.  Being a judge is actually a fairly grueling line of work, at least for trial judges.  I've tried cases in which the judges became severely ill, but because there was an ongoing trial, they kept on keeping on. They really had no choice.  For older judges, with a greater list of ailments, this would be an increased problem.  Time off the bench means that nobody is there, or in a trial setting, perhaps a court commissioner, a part time judge, is there.  However, Wyoming's voters recently declined to allow a constitutional amendment that would legalize the practice of allowing commissioners to sit on the bench if the judge remains in the county, so that's a limited option.

And, frankly, perhaps its just not in society's interest to have lawyers in their 70s and 80s sitting on the bench, or perhaps particularly on the  Wyoming Supreme Court.  Critics would note that this is already the practice on the Federal bench, but on the trial level, the Federal court's mostly rely on very set law, or on state law.  On the appellate level it can be argued that the examples we have may not really support keeping judges on until, basically, they die.

The law really belongs to the people in the end.  There's a great deal to be said about stability in the law, but sometimes that stability can be a negative stability.  Judges that come on to the court as a species of reformer, either conservative or liberal, end up remaining on the court as a bulwark against change.  At the U.S. Supreme Court level the practice has been to appoint ideological judges who are relatively young, with the idea of cementing the movement o the day in the courts.  It only partially works as the judges end up staying, in some instances, for 30 or 40 years.  That's good, and bad, but do we really want it at the local level?

The Wyoming Supreme Court is not the U.S. Supreme Court, and no great issues of the Federal Constitution will come in front of it.  A lot of important local issues will, however.  If the retirement age is removed, this will mean that the justices, who are often in their 50s, may be on the bench for 30 years.  That's a long time to have a potentially fixed set of ideas in control.

Indeed, on the score, the U.S. Army of World War Two provides an interesting example.  Going into World War Two the Army had a large number of elderly generals.  George Marshall, the senior general of the Army, determined, with the expansion of the Army in 1940, to forcibly retire almost all of them.  It's sometimes erroneously believed that he retired all over 50, he did not, but the impact of his actions had that practical result.  The Army, therefore, went into the war with young generals, some actually only in their 30s.  Why?  Not because the older ones were infirm, it's just that their thinking didn't evolve during an era of mechanized war.  It was fixed in an earlier era.  There's be no reason to expect judges would be any different.

 George S. Patton at age 59. He and MacArthur were unusual for US field commanders in that they were retained even though they were over 50 years of age in 1940.  Patton is believed to have suffered from some temperament problems, however due to head injuries sustained as a younger man, and what his condition would have been like in his 60s and 70s is open to question.

Indeed, keeping the Army example up and going forward, the Army of the 50s, 60s, and 70s reflected the fact that a lot of those World War Two officers did not go when they could have, and should have. The Army changed its retirement policy during the war to allow retirement after 20 years, but many hung on to the required retirement age of 60, and that reflected itself in our strategic thought for a long time.  It will be noted that in at least one war of the 1960s, we did not do so well.

 Major General James Gavin, a legendary airborne general, in his mid 30s.

Every time a position like this is opened up for somebody of advanced age, it's closed for somebody of a younger age. If judges are allowed to add another decade or so to their service, ti means that some who would have become judges will not.  It would not be possible for those judges to really make the career adjustment for a variety of reasons later.  Quite a few Wyoming judges in recent years have been in their 40s.  Given another decade of practice would the same individuals still opt for the bench?  A lot of Wyoming judges are appointed in their 50s.  Those individuals will not be opting for the bench in their 60s.

Indeed, while I like all the judges I know in their 60s, the argument can almost be made to adopt the Army's current policy and require the judges to retire in their 60s. Army jurist, like other soldiers, must retire at age 60s, well before Social Security eligibility.  That does insure that all of the up and coming jurists have a place.  I don't know that this same policy would be good for Wyoming, but I can see an argument for 65, or even 63.  Yes, it's young, and perhaps too young. But it also would mean that retiring jurists would make space for lot more younger judges, and there'd be more who were judges over time.  That seems like a good idea to me.

Finally, for those who are able and want to remain working, it allows, or perhaps forces, their talents to be applied elsewhere, which may be to everyone's benefit. Some retired judges have gone on to late interesting and valuable careers.  One became a famous baseball commissioner, for example.  One Wyoming district court judge in recent years went on to be a valuable appointed office under Governor Freudenthal.  There are other roles they can play.

Even with all of that, I suspect that this bill will pass.  People don't like to contemplate the grim realities of later life much, and like to pretend it won't occur.  And people really don't look out much for the younger age groups as a whole, even though people like to claim they do.  My prediction is that this bill will pass, and as a result, the judiciary will be lost to many fine individuals who would have made good judges, and we'll eventually have the embarrassing sceptical of somebody having to be removed for infirmity.

Epilog:

From the June 5, 2013, New York Times.

  ALBANY — At 74, Justice Sidney F. Strauss loves his job and has no desire to stop working. But at the end of 2014, he may be forced into his golden years by a mandatory retirement rule.

“Fifty years ago, when the life expectancy was 61, if you said, ‘You want to work to 76?’ They’d say, ‘You should live so long,’ ” said Justice Strauss, a State Supreme Court judge in Queens. “But as long as I am physically and mentally capable of doing this, I want to keep doing this.”

Each year, judges across New York and the rest of the country grudgingly hang up their robes because of these rules, many of which were inscribed in state constitutions well before the eras of penicillin, cholesterol drugs and hip replacements. More than 30 states and the District of Columbia have an age limit on jurists, according to the National Center for State Courts: 70 is the limit in many states; in Vermont, it is an optimistic 90.

In New York, judges have to retire at either 70 or 76, depending on their courts. But this year, a reprieve seems possible.

The Legislature has been considering a bill that would amend the State Constitution, if approved by voters, to extend the retirement age to 80 for hundreds of judges statewide, including the chief judge of the Court of Appeals, Jonathan Lippman.

Goodness.  Law belongs to the public, and a person loving their job has little to do with that.  Moves such as this effectively mean that people can live in some judicial districts had have the same judge presiding over it their entire lives. That hardly seems fair, or wise.  People may, due to improved healthcare, live to very advanced years, but does that mean that they should get to treat the office of judge as a personal possession for those long lives?

Epilog

Earlier this week I posted an item from the Federal Court list serve on the 70, that's right 70, Federal judges who are still serving on the Federal bench in some capacity who are veterans of World War Two.

I suppose differently, but that of course means that these gentlemen way up there in years.  I mentioned this to a couple of people, and received a couple of different reactions.  Frankly, having had to deal with the problems my mother's dementia creates for her, and therefore by extension us, has caused me to really, really doubt the wisdom of allowing somebody to work in this capacity for so long, and I wasn't the only one.  My mother thinks she's fine, and if she were a Federal judge, she'd probably be refusing to retire.  She certainly is in exceptional health for a person her age, except for mentally.

One reaction was a shocked "why would a person do that" which a teenager expressed to me.  "You could retire and do whatever you wanted."  Frankly, I feel that way too, although at age 51 I'm beginning to see how it becomes the case you can no longer do whatever you'd want. Still, I had that question myself.

A question of that type was one of the things the interviewer asked the various judges. Here's one of the answers?

Q. What makes you continue to serve on the bench?
A. I was appointed for life and I’m going to serve out my term. … it’s a performance of a duty, the same as I was doing when I was in Europe. I’m very big on duty, I was given a duty by President Nixon, and I have done my damnedest to carry it out for the 40 years I’ve been here.

Well, okay, but that perhaps demonstrates why these appointments probably ought to have a cap for retirement on them.  Nixon was a while back there.

Another jurist just enjoyed doing the job:

Q. You’ve kept up an active workload as a judge. For those who don’t have a lifetime appointment, what is that keeps you judging at this time of your life?
A. Well, I respect the court, and I’m interested in what I’m doing, what I have been doing over the years, so I’d like to continue doing as much of that as I’m physically capable of. Well, it’s partly just the satisfaction of doing this kind of work. If I didn’t like it, I wouldn’t have stayed on as long as I did, because I could have retired or gone elsewhere many years ago. This is just what I like to do most.

I like that answer a lot better, quite frankly, although it still bothers me that a person can occupy a limited special occupation for so long.

 Judge Leo Glasser provided this reasoning:

Q. Why do you continue to work full-time on the bench?
A. Well, to begin with, I love the law. The United States District Court is without any doubt the greatest court in the world, in the sense that it deals with everything from admiralty to zoning – every conceivable aspect of the law. Also, if senior judges all decided to go fishing, I think the federal judiciary would be in a great deal of difficulty. I don’t remember the percentage of federal cases that senior judges deal with, but it’s substantial. We perform a significant service to the judiciary, and to the country by extension.

 Judge Arthur Spatt's view was similar, implicitly.

Q. Why do you continue to work as a judge?
I carry a full load, absolute full load, same as my regular colleagues. This is the most extraordinary judicial position. …  I have both civil and criminal cases. I have diversity cases, where a citizen of one state is suing a citizen of another state. Every kind of case, whether it is an automobile accident or an action on a promissory note or a contract. I am so fortunate to be able to have this judgeship. … It’s as stimulating  as  the first day I was in it. Every case presents new things, innovative things, interesting things, challenging things.

I can't say that any of this changes my view. Rather, in some ways it reenforces it.   The job doesn't really belong to an individual the way other jobs do, but rather to the country as a whole.  It does charge that person with a duty, but does that duty include occupying it until death?  I don't think so.  Perhaps a larger duty exists to allow it to be occupied by a younger generation at some point. And no matter how much a person might enjoy it, enjoying it wouldn't seem to be a justification for continuing to occupy it.