Two bills went through a Wyoming legislative committee last week and received unanimous support.
One would add three judges to Wyoming's judicial stable. That's an excellent idea. The bill would bring a fourth judge to the 7th Judicial District, which is a great idea. This would help reduce judicial work load, or rather overload, which is a good thing for everyone, even people who don't have any connections with the courts, or don't think they do.
The other bill would raise the judicial retirement age from 70 to 75 years of age.
That's an absolutely horrible idea.
To set the background, consider this.
Right now, people of 75 years of age are those people born in 1946. They entered school, if they entered it at the typical American age of five years old, in 1951, the second year of the Korean War. They graduated from high school in 1964, prior to the United States' major troop commitment in Vietnam. Those attending university at the time had a deferment, so if they went right on to university, and not all did, they would have graduated from that in 1968, if they progressed at the regular pace. The draft had changed in the meantime and some would have accordingly gone on to service in the military, but if not, and they had the regular course of progress for lawyers, which many lawyers do not, they would have become lawyers in 1971.
Almost every lawyer who graduated from law school in 71 was male.
I note this not to suggest that there will instantly be a bunch of 75-year-old judges, but to point out what this would mean if we'd adopted this, say, a decade or two ago. There's some enormous societal and psychological pressure for those on the bench to remain there until retirement age. Most would have done it.
I've been practicing law for 31 years. When I started, and even a decade or more ago, almost all the judges were men. In my state they're still 100% white, FWIW, save for the associate judges in Tribal Court. Even in Tribal Court, the Chief Judge has gone from being an enrolled tribal member to a white member of the state bar, which is no doubt as there are so few practicing enrolled tribal members.
Now, I’m not suggesting that this does reflect racism or sexism. What I am saying is that the bench reflects the social reality of the times during which judges are appointed.
Indeed, the last two Governors made a full court press to try to address the gender imbalance on the Court, with one of them being highly open about that. At least for a decade or so the number of women who have been graduating locally from law school has been somewhat higher than men. It's still the case, however, that far more men are lawyers in the state than women. But in the younger demographics, this isn't the truth.
And this points out further than appointments tend to point out the social condition of the era. If appointments were made purely on experience, length of practice, etc., they'd still be mostly male.
Now, I don't want to go too much further into that, as it bring up some touch issues. Is balancing out the gender of judges really serving an overall social need and goal, for example? I'm not going to touch that.
But what I am going to do is touch this. If judges are too old, they're not judging over the society they're from, really.
That's okay, I guess, if we want the bench to be a reservoir of societal memory and tradition, which perhaps we do. It's not okay, however, if we want the court to have a more direct connection with the conditions of those it is judging over, which I think we do. At age 75, for example, the children of the judge will be approaching old age themselves and their grandchildren will be full on adults.\
Indeed, this operates in an odd way on both of the appointment philosophies that involve age.
At one time, quite a few judges were appointed from the end of their careers as lawyers, with the thought being that they were distinguished lawyers by the time they'd hit their early 60s, and that they'd bring that talent to the bench while they were still able to do so. Indeed, given the length of the term of appointment, 8 years for the Supreme Court, 6 years for the district court, and 4 years for the circuit court, quite a few judges would have gone through only one election to judge on their retention, if they were appointed with the noted philosophy. Indeed, not all that long ago I had a mediation in front of a retired judge who had in fact been appointed in that fashion and who may have only served one full term, or at the very most, have served parts of two terms. There's nothing wrong with that at all.
The other appointment philosophy, however, has been to appoint younger judges who will last long beyond the Governor that appointed them. This way, the Governor's judicial philosophy will reflect itself for decades.
Raising the retirement age would skew both of these goals. For a Governor who wanted to appoint jurists in their 50s to reflect their experience, he now will be in a situation of judges simply never retiring and then lasting longer than expected. For a Governor who may be appointing a jurist at age 40 or so, it means that they'll serve seemingly forever. Indeed, on that, if this had been the system, there would undoubtedly be judges on the bench now who had been there before I was admitted to practice law 31 years ago, an astounding thought.
And frankly most people at 75 aren't the people they were, physically, and mentally, at 55, or 45. This is just a simple fact.
The bill to add judges seeks to do so as the work load is so heavy for the current ones. One interviewed noting on weekends and nights, something very common, FWIW, for practicing lawyers. Do we really expect 75-year-old judges to work weekends and nights?
And do we want to guarantee that some judges spend their final session on the bench with dementia, as this would do that.
Indeed, we all well know that dementia, for those who are afflicted with it, can come on as early as the 50s with some unfortunate people, and for others set in during their 60s. But it really starts coming on in the 70s for those who end up with it. Age 75 is an age where we expect those who might come down with it to have come down with some signs. But it's also the case that frankly the public, which has plenty to do otherwise, doesn't pay that close of attention to the bench, so average people are really unlikely to know a judge has dementia and vote him out of office. Lawyers are likely to know, but rarely do they mount a campaign to remove a judge at the polls.
Indeed, there's recently been a case of a Judge in another state sentencing a party in a case and then leaving the bench within days after that, with that example involving a judge who was only 54 years of age. There's no reason to believe that the sentencing was impacted by the judge's early onset dementia, but it's become an issue.
One out of every eight Americans over age 60 has some reduced mental capacity. Once you are up over 70, it's 25%. Over 85, which of course is beyond the age we're speaking of, it's 50%. Things being what they are, and particularly with an influx of Colorado lawyers in Wyoming who have a reduced need to preserve a good relationship with the court if the needs of their case aren't served by it, do we seriously believe that this wouldn't become an issue again and again for aged jurists. And indeed, at some point, it legitimately will be, in at least some cases.
Besides the fact that it's just gambling with a societally important role. As it is, judges in their last decade of service have something like a 1 and 8 chance, if the statistics can be applied, of suffering to some degree from impairment. That strikes me as an acceptable risk. A one in four chance? Not so much.
And finally, why would we want to do this? It's not the case that all legal talent is somehow vested in the Baby Boom generation, and it would seem we would want to maximize the opportunity to have lawyers enter the judiciary prior to their being ancient. Indeed, a better case, quite frankly, can be made for depressing the retirement age, not lowering it.
No comments:
Post a Comment