A few weeks ago, the Vermont Senate discussed a proposal to require that all state judges step down from office upon reaching the age of 110. This may sound like the mootest of moot points, given that no jurist in Vermont--or anywhere in the world, I imagine--has ever lived that long. But it had a purpose.
In a bizarre sort of way, the debate underscored Vermont's notable status as one of the few states in the country that take the concept of elder statesmanship seriously. U.S. Senator George D. Aiken served into his eighties as a model of candor and rectitude, beloved by Senate colleagues and constituents alike. Deane C. Davis, serving two terms as governor in his seventies (1969-73), reformed the state bureaucracy and tax system, and earned a reputation as one of the genuine visionaries in state government history.
You might suspect that, in raising the question of retirement at 110, the legislators were making room for the possibility of a latter-day Aiken or Davis able to function productively as a centenarian with the help of breakthroughs in medical science.
Romantic as this may sound, however, it was not what occasioned the debate. The truth is, Vermont has been debating judicial retirement for almost three decades and has never been able to figure out just what to do.
The trouble started with the new state constitution enacted in 1974. It provided that, henceforth, every state judge would have to retire at 70. Just how this language even got approved is a puzzle, given that Davis and Aiken were both in their septuagenarian prime in 1974, and F. Ray Keyser, the state's most respected Supreme Court judge, was even older. (Keyser continued hearing cases until he was past 90, and lived to 102.) To many in the Green Mountain state, the retire-at-70 clause seemed, at the very least, un-Vermontlike.
Among those who resented it most was State Supreme Court Justice Louis Peck. When he turned 70, in 1988, he simply refused to quit, arguing that the rule violated the federal Age Discrimination Act and that federal law took precedence over a state constitution. Peck actually prevailed in federal appeals court, winning a favorable ruling from a judge who was himself past 70, but the U.S. Supreme Court reversed it 7-2, turning aside the dissenting arguments of Justices Thurgood Marshall and Harry A. Blackmun, both 83 years old at the time.
Despite this outcome, many of Vermont's leaders continued to feel that the state judiciary was saddled with an unfair and unrealistic retirement rule. Of the 50 states, only eight impose mandatory retirement for judges at 70, without offering any provision for extended service in cases where it is merited. Thirteen states have no mandatory retirement age for judges at all. The consensus in Vermont seemed to be that, given its local tradition, it had placed itself on the wrong side of the issue.
So an effort was launched to change the rule. Amending the constitution is difficult in Vermont--it requires two separate votes of the legislature, then a statewide referendum. Nevertheless, over a period of several years, all the steps were taken, and last November, Vermont's voters changed the constitution to take the retirement clause out.
The problem was, they didn't do it right. They replaced the mandatory age-70-retirement clause with a more complicated one proclaiming that "all justices...and judges...shall be retired at such age, not less than 70 years of age, as the General Assembly may prescribe by law, or, if the General Assembly has not provided by law, at the end of the calendar year in which they attain 70."
The intent was to say, if the legislature did nothing, there would be no retirement age, period. But what they actually said was that, barring legislative enactment, retirement at 70 remains in effect. Any pro-retirement litigant who chose to construe it that way would have an excellent case.
Of course, there was a way to get around this problem: Enact a retirement age, but make it so high as to amount to no restriction at all. This is how the proposal for retirement at 110 came under discussion. In the end, however, senators began to worry about the impression such a law might create in the rest of the country. As one of the sponsors admitted, "we would begin to look a little bit silly." So they compromised on age 80, necessitating a conference with the state House, which was still insisting on no statutory limit at all. The issue was still undecided as the legislature moved toward adjournment in late May.
But whatever Vermont ultimately does, the difficulty it has had disposing of this issue reflects something more than the peculiarities of the state. It reflects the subtleties of the issue itself. There are good reasons for having a mandated age of judicial retirement. There also are good reasons for not having one.
First, there are demographics. Most state laws mandating judicial retirement were enacted a long time ago. New York, for example, established an age limit of 70 back in 1869. In doing so, it was placing the restriction at a point roughly a quarter-century past the normal life span. The current life expectancy is 77, so using a similar formula these days would allow judges to serve until they reached the age of 102.
It's not entirely a fair comparison, of course. Not many people made it past 70 in the 19th century, but those who did had a good chance of doing so without serious risk of mental impairment. Today's crop of 102-year-olds isn't so fortunate. We have made greater progress at keeping people alive than we have at keeping them lucid. However, looking at life-expectancy tables raises inescapable questions about the wisdom of mandating retirement at 70 for any profession, not just the judiciary.
But for those unswayed by demographic considerations, there are simple practical ones. Virtually everywhere in the country, the size of the judicial workload is increasing. Court budgets are not keeping pace. New judgeships are expensive to create, and finding qualified applicants requires a commitment to pay them more than almost anyone else in the public sector earns. Under the circumstances, it is only common sense to keep sitting judges on the bench as long as they can do the job, regardless of their age.
And in fact, most state and local jurisdictions are already doing this, one way or another. When state judges in New York reach the age of 70, they are allowed to apply for certification to remain on the bench for three additional two-year terms. Most of them apply for it-- and get it.
Florida's state and local judges are required to step down at 70, but a majority of them continue taking cases on senior status, just like retired federal judges (who have no age limit). In some Florida jurisdictions, they mainly handle routine administrative chores, but in others, the senior judges are given the complex and long-running civil litigation that everyone else tries to avoid. Several years ago, a group of medical malpractice lawyers in Broward County, north of Miami, filed suit charging that the excessive use of retired judges in difficult cases was impairing the credibility of the courts. The Florida Supreme Court disagreed, and the system remains in place.
But if heavy dockets and tight budgets make a compelling practical case for keeping elderly jurists on the bench, there are equally practical arguments for giving them a fixed date of departure. One is painfully simple: It is very hard to tell when a judge is no longer up to doing the job. To my knowledge, no one has made a formal study of mental decline on the state or local judiciary, but David Garrow, of Emory University Law School, studied the issue for U.S. Supreme Court justices over two centuries, and concluded, in a 2001 law review article, that even the most distinguished justices tended to close their careers ungracefully, staying on to the point where they were unable to follow arguments or write opinions, and forcing colleagues to take on the excruciating task of imploring them to step down.
Mental impairment is not a pleasant subject, to regulate or even to contemplate, but it is a serious issue in any jurisdiction that offers judges unrestricted life tenure. Mandatory retirement, for all its flaws, largely does away with this problem.
It also does away with the temptation for aging judges to remain on the bench year after year in the hope that a change of administration will allow them to depart in favor of a replacement with whom they are in sympathy. No one can seriously deny that this is happening right now on the U.S. Supreme Court; it happens, less conspicuously, on the higher state courts as well. When the mandatory retirement issue came up in the Vermont Legislature in 2000, the state's largest newspaper, the Burlington Free Press, editorialized that dispensing with age limits would create a serious political problem. "Take away the ceiling," the paper warned, "and Vermont will see a major change: Judges will hold out till a governor of their liking, politically, intellectually or legally, is elected."
The whole issue seems to present an impossible dilemma: Impose mandatory retirement, and you may be depriving citizens of their wisest and most admired jurists, still in their productive years. Eliminate mandatory retirement, and you have little protection against the corrosive impact of mental decline.
If you have trouble making up your mind, you might decide the question by considering Oliver Wendell Holmes Jr. With a retirement age set at 70, Holmes' career on the U.S. Supreme Court would barely have gotten started; even if it had been set at 80, some of his most eloquent and important decisions would never have been written. In the end, you might reasonably conclude that even one Holmes in a century is worth a little messiness around the edges.
What was it the Bible said? "Thine age shall be clearer than the noonday"? It's probably a good idea to make allowance for the rare cases in which that actually turns out to be true.