How old is too old?
The Wyoming Constitution has an interesting prohibition in it that states that all supreme court justices and district court judges must retire at the age of 70. The Wyoming Constitution has effectively written age discrimination directly into the constitution. We, as a state, have made a statement that a judge is incompetent pass the age of 70. This, of course, is not true and this attitude toward the Judiciary sets a dangerous precedent for other occupations.
For some reason, we have decided that beyond 70 there is nothing more that that judge could possibly offer. The problem with this argument is that in many cases those are our most experienced judges that we are losing because of an arbitrary age cutoff. Many of our judges and especially our justices are appointed late in their careers. This is understandable and preferable. You want your most experienced attorneys becoming judges. Thus, many district court judges and supreme court justices get appointed in their 50′s or even their 60′s. It takes a few years to learn the ropes of being a trial judge, as is the case for a district court judge, or to learn to be a good appellate judge, as with a justice.
The Federal Judiciary does not have such a rule. A U.S. Supreme Court Justice or a Federal District Judge can stay on long past 70. Our federal district court judge, Clarence Brimmer, is past the age of 70 and still doing a great job on the bench. Justice John Paul Stevens is still on the bench. There is speculation that he may retire after this current term ends. (He only hired one law clerk for next year, which is seen as a sign that he may be retiring.) An odd inconsistency is that our circuit court judges could remain judges beyond the age of 70.
The question can be asked, and is asked of me everytime I bring this subject up, how do you guard against a “senile” judge or a judge that is no longer capable of being a judge because of mental “frailties”. First of all, most judges realize when they are not on top of their game anymore and will choose to retire on their own. And for those that do not recognize that they may have an issue (which could be true at any age, not just over 70), there is the Judicial Conduct Commission that can review complaints against a judge or justice and take action. Thus there is a safety valve. But my best answer to this question is usually, how do we guard against the 50 year old judge that may have alzheimers? Why is 70 the magic number that suddenly people have to fall apart and no longer function. My father is over 70 and sits on the Planning and Zoning Commission for his county/city. He undoubtedly has the most experience on that board as a planning commissioner and adds greatly to that board. Are we going to tell people over the age of 70 that they can not sit on planning and zoning commissions because we are worried about their judgment abilities. Do we tell elected officials that they can not run for and retain their offices after the age of 70?
As our older population continues to grow and baby boomers continue to retire, we need to start utilizing them more, not the other direction of removing them from office.
I drafted two bills last year that deal with this issue. I ended up not filing them because there was some pushback from some of my fellow legislators on this issue, and I had a full plate last year. This year, I am looking at filing these two bills. One bill would place on the 2010 November ballot, the question of amending the Wyoming Constitution to remove the provision that dictates that district court judges and supreme court justices must retire at 70. This prohibition is also repeated in statutue, so the 2nd bill would remove the statutory prohibition, if the constitutional amendment was to pass the vote of the people.
What do you think? Should judges and justices have to retire at 70? Should the legislature vote to put this question on the ballot in November 2010? If it was on the ballot, how would you vote? If you are against my bill, what concerns do you have with a judge or justice staying on the bench beyond the age of 70?