2013 Ballot Questions- Part 7: New York's Mandatory Judicial Retirement Ages

Since the Revolutionary War, New York has had a mandatory retirement age for judges. Originally, it was sixty but later increased to 70 in 1894 with that age reaffirmed five times since, the most recent being in 1966. In fact, New York is one of 32 states with a mandatory retirement age, but none below 70. Proposal 6 asks the voters whether the retirement age should be increased to 80 years which would make New York’s retirement age one of the oldest in the Nation.

Federal judges are appointed for life and serve during times of good behavior. The reasons are quite evident- it establishes the Judiciary as the final check on an over-reaching Executive or Legislative branch, each a supposed check on each other. Although judiciary appointments are certainly political in nature (they are appointed by politicians and confirmed by politicians) the Judicial branch is supposed to be the most apolitical branch of government, at least at the federal level. In some states, judges are elected with the people being the ultimate check on the judicial branch. In some ways, this system is more transparent than the nomination/confirmation process where positions on certain issues of importance are unknown. Instead, during the confirmation process, Senators are left to study law review articles and speeches given by the nominee to glean any information. The problem, however, as concerns this subject is not the method of getting judges on the bench, but when they should leave the bench.

I am not sure of the views of Redstate readers on this subject. I am sure that as conservatives there is likely support for term limits and that they should possibly apply to the judiciary. However, personally I have always been against judicial term limits, and certainly against it at the federal level. At the state level, it should be left to the states although I would argue against term limits or retirement ages even at that level. The judiciary, as stated earlier, is designed to be a check on both the legislature and the executive when they are not actually checking each other. Admittedly, sometimes they fail to do that. At the federal level, the Obamacare cases from last year are a perfect example where the Supreme Court failed in this task. And admittedly, they often render decisions in cases not to the liking of conservatives. Viewed in its full context, there are likely a number of decisions with which liberals disagree. As we have seen, for example, in the case of abortion, Roe has been chipped away at, as has Miranda, and other decisions that draw or drew the ire of conservatives.

The proposal to increase the retirement age in New York is opposed by Governor Andrew Cuomo. The New York court system is rather complex with three tiers- a trial part (actually called the supreme court), an appellate division and a final appellate “supreme court.” Hence, it is kind of hard to illustrate the negative effects of a 70 year retirement age in New York. Instead, we can use the US Supreme Court as an example. Four of the current nine members are over the age of 70- Scalia, Kennedy, Breyer and Ginsburg. Imagine what the Court would look like if they were forced into retirement and Obama was doing the nominating. It is true that if the retirement age was somehow magically always in force prior to today, all of these Justices would have been replaced by Bush previous to Obama getting into office. The next to be forced into retirement would be Thomas in 2018 followed by Alito in 2020. Depending on the occupant of the White House and the age of retiring Justices, the balance on the Court could be seriously affected and constantly shifting. While it sounds great from a conservative standpoint to get rid of a Breyer and Ginsburg, it sounds even better from the liberal standpoint to get rid of a Scalia, Kennedy, Alito and Thomas. The lack of a mandatory retirement age creates stability in the articulation of constitutional law.

The arguments against raising the retirement age look to serve only liberal causes in liberal, Democratic-controlled New York. Cuomo argues that there should be greater rotation in judicial appointments because, after all, he would be the one doing the nominating. Some other opponents of Proposal 6 have said that rotation at age 70 would allow for greater judicial representation by blacks, Latinos and Asians- a form of a judicial affirmative action program. Some also cite the added cost of health benefits, but they are entitled to those benefits one way or the other regardless. Any opposition to raising the retirement age is directly attributable to the fact that the Governor- Cuomo in this case- would be making fewer judicial appointments and, thus, leaving less of a judicial legacy.

Furthermore, it is usually liberals who argue against workplace discrimination and what can be more discriminatory than assuming the stereotype that an individual somehow loses their physical and mental stamina and abilities at age 70? I confess to not knowing the ages of New York judges, but we can use the example of the US Supreme Court. There have been many instances of Justices being fully functional well past the age of 80. Sure, some have been blubbering fools. For all the greatness erroneously heaped on Thurgood Marshall, for example, near the end of his tenure he directed his clerks to draft an opinion so that Justice William Brennan would join it and he was barely articulate during oral argument with meandering questions. Usually when this happens, a Justice will retire, but Marshall hung on because he did not want a Republican appointing his replacement. However, this example is the exception to the rule. There are many more examples of Justices working well into their 80s and beyond and being fully functional both physically and mentally. Despite his age and failing health, William Rehnquist falls into that category and the same can be said of both Ginsburg and Scalia today whether we agree with them or not.

In the final analysis, by keeping the retirement age at 70, a Democratic governor (Cuomo) would have more nominations and more of a judicial legacy. Their opposition to increasing the retirement age is simply a Democratic power grab in a Democratic state.

Suggestion to New York voters: Vote “YES” on increasing the mandatory judicial retirement age from 70 to 80.

Next: Part 8- New Jersey and the minimum wage