Does age matter for judges?


How old is too old to be a judge? Thirty-three states have mandatory retirement for judges, according to the National Center for State Courts. The age is generally between 70 and 75.

For nearly 20 years state legislatures across the country have tried to increase or abolish mandatory retirement for judges, with mixed results. Since 1990, at least 11 states have tinkered with mandatory judicial retirement including Pennsylvania and Ohio. In fact, the Virginia Legislature has tried unsuccessfully for seven consecutive years to increase the mandatory retirement age for judges.

Federal judges have no age restrictions. According to an investigation by ProPublica, as of January 2011, 12 percent of federal judges were over age 80 — that is about 150 judges — and 11 judges were over the age of 90.

Neurological exams

Some federal judges have raised concerns, and one has taken action. Judge Frank Easterbrook, the chief judge of the Seventh Circuit Court of Appeals, arranged for two colleagues to see neurologists and has even publicly called on lawyers to contact his chambers directly if they think a judge is exhibiting symptoms of dementia.

There appears to be ample research to support concern. According to one study, by age 70, most people are cognitively impaired and half of all 85-years-olds have dementia. The cognitive functions most affected by age are attention, memory, language processing and decision making — fundamental skills in any courtroom.

There is no arguing that some older people outperform some younger people, just as some juveniles cognitively and emotionally outperform adults. There is no hew and cry to lower the drinking age or voting age, in fact the science of brain development has been successfully used to eliminate the death penalty and life in prison in some circumstances for juveniles.

Judges campaigned for office knowing their terms were limited by mandatory retirement. Now judges want to change the rules. This is reminiscent of congressmen who ran for office in 1994 under the Contract with America. They pledged to self-impose term limits and then decided to run for re-election in contravention of those pledges. Most won re-election.

Pennsylvania judges are so sure that the state’s mandatory retirement age is discriminatory they’re suing in state and federal court. The judges allege that the mandatory retirement age amounts to age discrimination and violates the equal protection clause under the 14th Amendment of the U.S. Constitution.

There are two separate pieces of legislation in the Pennsylvania General Assembly to deal with mandatory retirement. A bill in the House would increase the mandatory retirement age from 70 to 75. A Senate bill would eliminate altogether the mandatory retirement age.

There is a lot on the line for Pennsylvania trial judges and appellate judges — four of the seven state Supreme Court justices will reach 70 in the next five years.

According to Stateline Magazine, the only way to change the retirement age of judges in Pennsylvania is to change the constitution, and that is a long shot. A change in the state constitution requires that an identical bill pass both chambers of the Legislature two sessions in a row. The measure must then win a popular vote in a statewide election. The earliest either of these provisions could be on the ballot is 2015.

Ballot measure

Things are even murkier in Ohio. Forty-five years ago Ohio voters amended the state constitution to prohibit judicial candidates from taking office once they turn 70, although they can serve the remainder of their term. In 2011, a ballot measure would have extended the age to 76.

As the election rolled around, Ohio Supreme Court Chief Justice Maureen O’Connor told the Columbus Dispatch, “This arbitrary age limit eliminates some of our most-experienced judges from serving Ohio and administering justice fairly and impartially.”

Ohio voters didn’t buy it. The measure lost by more than 800,000 votes.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly and George and the former district attorney for Lawrence County, Pa. You can read his blog at www.mattmangino.com and follow him on twitter @MatthewTMangino.

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