How Old Is Too Old to Be a Judge? Voters in 4 States Got to Decide.

Voters generally agreed to raise the age limits -- but not do away with them altogether.
by | November 9, 2016
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Read all of our coverage on 2016 ballot measures at governing.com/ballotmeasures.

Voters this year weighed in on a total of 234 state supreme court and intermediate appellate court seats.

But beyond the election or retention of individual judges, voters in four states -- Alabama, Georgia, Oregon and Pennsylvania -- got to decide the fate of ballot measures that would change the rules governing judicial careers. Most of them had to do with the mandatory retirement age for judges, but Georgia's will revamp the state's judicial ethics commission.

Debating the Retirement Age

There may be no practical reason to force judges to retire at a given age. That doesn’t mean voters are ready to allow them to serve forever. 

In Pennsylvania, voters narrowly agreed to raise the age limit for judges from 70 to 75. But Oregon voters handily defeated a proposal to repeal the age limit entirely. It will stay at 75 in Oregon.

In addition, voters in Alabama decided to raise the maximum age at which a judge can be appointed, from 70 to 75, but that will apply only to one county. It also passed by a narrow margin.

Such measures are a tough sell.

Voters tend to be skeptical about keeping a particular group of judges on the bench for longer periods. The question had been on ballots around the country 11 times between 1995 and this fall's election, according to the National Center for State Courts. In nearly every instance, the move to lift age limits has failed.

Across the culture now, there’s an understanding that older people are often able to remain productive well past traditional retirement ages. That’s one reason why the age for collecting full Social Security benefits has gone up and is likely to be extended further.

“All the evidence suggests that people are living longer, and judging is the classic old-age profession,” says Scott Makar, an appellate court judge in Florida who has studied the issue. “It takes what older people have, which is experience and judgment.”

Laws placing an age limit on judges have been on the books a long time in most places, and are rooted in historical events in which jurists were incapacitated by dementia. But that shouldn’t be much of a problem anymore. As Makar notes, his state and others have commissions in place to remove judges who can’t perform their duty.

“There is a growing belief that an age limit established long ago is too low by today’s standards, and is arbitrarily depriving our courts of some experienced, thoughtful and highly capable judges,” says Pennsylvania state Sen. Lisa Baker.

Supporters of maintaining age limits generally talk less about impaired ability and more about using them as a form of term limits.

“If all you’re concerned about is mental fitness, of course you raise the age,” says Charles Geyh, an expert on the judiciary at Indiana University. “But there’s a countervailing concern for new blood. You want young people not because they’re young and vital, but because they bring a new perspective.”

Supporters of the age limit in Pennsylvania also pointed to the fact that in recent years, the state Supreme Court has been rocked by scandals involving pornography, sexually explicit emails and campaign violations.

Mandatory retirement ages may not make the judiciary cleaner or more competent, any more than legislative term limits have added to the honesty or competence of legislatures. But they can be a way to get rid of judges who the public feels have outstayed their welcome.

A version of the retirement-age referendum had already appeared on Pennsylvania ballots once this year. The legislature decided to move the referendum to November, but it stayed on most ballots in the April primary anyway. It didn’t count, and the vote was close. Tht time, the measure to raise the age limit failed.

Overhauling the Judicial Ethics Commission

Who should judge the judges? That age-old debate has just had a fresh hearing in Georgia.

On Tuesday, voters agreed to change the way the state judicial qualifications commission is set up via a proposed constitutional amendment. The independent agency is tasked with going after judges for unethical behavior. Over the past decade, more than five dozen judges have been removed or stepped down in the face of an agency investigation.

One of those judges is now a sitting legislator. State Rep. Johnnie Caldwell resigned as a superior court judge in 2010 amidst sexual harassment allegations. He also co-sponsored the legislation that put the question of the makeup of the judicial commission before voters. Caldwell has said this has nothing to do with his own history with the commission, which he maintains is all in the past.

Instead, along with his co-sponsors, Caldwell cites the commission's treatment of former Superior Court Judge Cynthia Becker. She was indicted last year for lying to the commission, but the case was so weak that it was thrown out just days later, with a judge scolding the prosecutor for bringing charges.

"They sit as a completely autonomous group under the Georgia Constitution, so they're really answerable to no one," says Wendell Willard, who chairs the state House Judiciary Committee.

Up until now, commissioners have been selected by the state bar, the Supreme Court and the governor. With the measure's passage, the legislature will get to pick a majority of the commissioners. Supporters of the current commission say the new system will have the effect of eroding the agency's independence by making its members answerable to the political class.

Even if there are legitimate questions about how the commission has treated certain cases, that's not a good reason to change its structure and give the legislature effective control over it, Billy Corriher, an expert on state courts at the progressive Center for American Progress in Washington, D.C., said prior to Tuesday's vote. "It's important to have independent watchdogs in states where they elect judges," he says. "The commission they have in Georgia, as currently constituted, seems to have worked pretty well."

But Willard and others argued that commissioners have acted as investigators going after judges, and have then served -- in effect -- as the judges and juries in the same cases.

"One of the concerns we've raised is the due process issue," says Willard. "There is no way to really modify the makeup of the commission," short of a constitutional amendment -- which the state now has.

*This story has been updated from the version that appears in the October 2016 print issue of the magazine.

Read all of our coverage on 2016 ballot measures at governing.com/ballotmeasures.