I saw that the Sixth Circuit upheld Michigan’s constitutional limitation on judges not serving past their 70th birthday. Though it seems crazy, more than half the states have similar provisions. Ours was included in the 1818 Constitution and remains in force and effect, though there’s a statute allowing for unfinished business to be wrapped up before a judge hangs up the robe.
Two hundred years ago, it was pretty unusual for people to live—let alone work—into their 70s. There is some interesting dicta in the occasional case in which courts have reviewed the issue of mandatory judicial retirement, usually in the context of someone aging out during the consideration or reconsideration of a close case. A century ago, the arguments seemed to be that it was self-evident that a judge entering her or his eighth decade might not be sharp enough to be trusted with the public good. Now, the decisions defend the practice on the basis that it’s been the law for centuries, and if the rules are to be changed, it’s up to the legislature to amend the Constitution, not an appellate court.
Of course, 60 is the new 50 (or 40) and many folks are working longer on both sides of the bar. There’s a Monty Python skit where body removers during plague time encounter a corpse who is clearly not dead. What follows is some hilarious back-and-forth between the removers and the removed as to whether he’s dead. Though begrudgingly admitting that the poor soul might be technically right that he’s not dead, the removal team persists on the basis that if he’s not dead yet, he’ll be dead soon enough and they have a job to do. The problem is solved when they knock the guy on the head and dump him on the wagon.
I was reminded of this when I got a call the other day from a lawyer with a problem. His matter was tricky, and without bragging, I told him that there was a very small bar experienced enough to help him navigate the shoals. Well, he replied, some folks tell me you’re retired and I might consider someone younger to handle the case. Ouch! Cue Monty Python.
At a recent 50th high-school reunion, a friend who is chairman of the nuclear engineering department at Berkeley told me he’d never retire; he was searching for dark matter, and, like Ahab, was probably going to die pursuing the quest. Another friend told me how, after retiring from a big-ticket corporate law job in his 50s, he joined a firm doing tax work related to M&A. He found retirement insufficiently stimulating. Another guy my age told me he’d billed 1,900 hours last year. Good for them. If they want to keep working, let them. But time has a way of slipping by. Many of us took Tom Ullmann’s recent untimely death as a reminder that life is short and the end often not announced in advance.
I’ve spent some time of late coaching brethren on how to transition to retirement. One thing we in lawyer risk management warn about is the danger of dabbling. It’s tempting to hang on in hopes of a particularly interesting or remunerative case, but our skills don’t remain fixed and times and laws change. The last case we handle shouldn’t be defending the malpractice case arising out of the second-to-last one.
When folks ask me how much I’m working, I tell them I work every day, but never work a full day if I can help it. Last winter I was on call at a soup kitchen and two or three days some weeks subbed in for volunteers who couldn’t make their shifts. It was a bit surreal balancing a cellphone on my shoulder talking a lawyer through a tricky issue while stirring a huge pot of chili with a ladle the size of a canoe paddle. We served over 15,000 meals during the winter, and I was as rewarded with that as I was when I got a client a no-probable-cause finding on a grievance.
I’m glad I’m not a judge and can choose when to stop. For now, balancing the sacred and the profane, with a dose of public service on the side, seems to be working. When my colleagues ask me what I’m up to, I do my best imitation of Monty Python’s “I’m not dead yet.”
Former Connecticut Chief Disciplinary Counsel Mark Dubois is with Geraghty & Bonnano in New London.