Judges, like professional athletes, rarely know when it’s time to hang it up. Like pro athletes, because they’re insulated from the public — for good reason — and people routinely suck up to them, they can sometimes lose touch with reality and how they’re perceived.
They are not like us, not really, by virtue of what they do. And they’re not treated like us, either, in ways both good and bad. Which is one of several reasons why no one should be shedding tears for those state court judges facing the prospect of mandatory retirement at age 70.
I’ve heard lots of lawyers complain over the years about various state and federal judges "slowing down" or "being out of it," or "losing their edge," or talk of their temperament and demeanor going south. On the federal level, there’s no good mechanism to deal with it, and those judges rarely see the writing on the wall. It usually takes a few reversals from the U.S. Court of Appeals for the Third Circuit accompanied by stinging criticism to get the message across.
On the state level, we’ve had the mandatory retirement age of 70 as a means to guarantee that every judge, good or bad, will eventually have to go.
For some reason now, despite the fact the Pennsylvania Constitution mandates retirement in the year judges turn 70, and the fact the Pennsylvania Supreme Court upheld the provision in 1989, suits have been filed in state and federal court by judges challenging their impending retirements. The state Supreme Court heard arguments in two of the retirement cases last week and then assumed jurisdiction of a third soon after.
Why? Pennsylvania judges have been retiring at 70 for decades. The judges challenging the retirement provision knew what the deal was when they first ran for judge.
This isn’t to pick on the judges bringing the suits. They’ve had long and distinguished careers. I would never question the competency of judges like Philadelphia Court of Common Pleas Judge John W. Herron or Bucks County Court of Common Pleas Judge Alan M. Rubenstein — not at 70 or probably even 80 for that matter. I assume the judges bringing the suits like their jobs, want to serve, and think the provision is unfair.
But this isn’t about individuals. It’s about the will of the people etched in the constitution and what many see as an attempt to do an end-run around it. It’s the wrong thing to do.
I know a number of lawyers who think judges should be able to serve later than age 70. However, those same lawyers are troubled by the judges trying to change this via the courts, rather than the legislative process. Because that’s what you’re supposed to do when you want to change the Constitution — you go through the legislative process, and then, heaven help us, you actually put it to the vote of the people.
Advocates for the judges will argue it’s discrimination, and make comparisons to the civil rights movement. Those arguments don’t hit the mark. Having a provision in the constitution that mandates retirement at 70 for judges is no more discriminatory than term limits. Unlike African-Americans who were denied educational and employment opportunities prior to the civil rights movement, the judges in these cases weren’t denied the opportunity to be judges. They’ve served on the bench, many of them for a long time.
They’re not being denied an opportunity. They’re being denied what they want. That’s not the same thing as discrimination.
Constitutions are wonderful documents. They give us rights, and they also put limits on government power. The retirement provision is not just a check against possible incompetency. It’s a check on power.
Please don’t talk to me about the ability of our judicial system or the judicial conduct system to ferret out the bad judges or those past their prime. That only happens if they get indicted by the feds or they don’t have the right friends. Pennsylvania has seen plenty of examples of bullies and sometimes felons dominating courthouses and counties, treating them like their private kingdoms. At least with mandatory retirement we know there’s an end date to their reign.
There is also something to be said for the infusion of new blood and new perspectives on the courts. They’re necessary, because the world, especially now, is ever-changing. Our courts might not be the most diverse in the country, but they’re certainly better off in that regard because of regular turnover.
When the Philadelphia civil court system was a mess and new protocols were needed to clean it up, the reform efforts were led by people like Herron and Philadelphia Court of Common Pleas Judge Mark I. Bernstein, among others, who were still in the relatively early stages of their judicial careers. What might have happened to those reform efforts if there had been no turnover?
New blood leads to new perspectives, new energy. The hope is that balances out what you lose in experience from the judges retiring.
The retirement case has spawned more speculation than any I can recall in recent memory. Some believe the outcome is not in doubt, and the retirement provision is doomed. Those people predicted the high court would fast-track the cases weeks before they did. There are whispers that all of this was encouraged by members of the Supreme Court. A few of them, including Chief Justice Ronald D. Castille, will be turning 70 soon. I’m told there is pressure on lawyers from some in judicial circles to write and speak out in favor of the suits.
Others have told me, based on signals they’ve gotten, that they think the court will affirm precedent and uphold the retirement provision, because some justices want to see Castille leave the court.
All of this just looks bad. It doesn’t matter if the challenges or the Supreme Court’s decision to hear the cases directly are self-serving or not. The perception of many is that they are. Perception becomes reality.
It reminds me of the pay-raise debacle, which led to nothing but misery for the courts and judges in Pennsylvania, including the loss, directly and indirectly, of three Supreme Court justices.
Amid all the speculation, one thing is clear — the right choice is to uphold the constitution, affirm precedent, and then lobby the General Assembly to begin the process of amending the constitution to raise the retirement age.
Judges hand down rulings all the time where they acknowledge the unfairness of a litigant’s predicament, but are quick to add that there is no remedy in the law for the litigant’s situation. That’s the situation facing the judges who will turn 70 before there’s a chance to amend the constitution.
What that situation lacks in fairness, it makes up for in clarity. After years of being removed from the public and treated differently, it’s a reminder for the judges of what daily life is like for the rest of us. •
Hank Grezlak is the associate publisher and editor-in-chief of The Legal Intelligencer. He may be contacted at 215-557-2486 or by email at firstname.lastname@example.org.