Are retirement ages for Minnesota Supreme Court justices constitutional?

I recently attended a fundraising party at a downtown Minneapolis law firm. As you probably know fundraisers are sort of like rent parties in college. The host provides some alcohol and snacks and the guests provide some cash for the person or organization seeking the funds. In college one would then try to drink enough alcohol to make attending the rent party a good investment of scarce funds. That sort of behavior is frowned on at fundraisers held at law firms.  So that is one difference between a rent party and a fundraiser.

Too old to judge?

There is a movement afoot in New York to remove its constitution's requirement that judges retire at age 70.

Mr. Gillette recently posted about Vermont's "optimistic" forced retirement age of 90. As I said in a comment to that post, my intuition is that judges should probably retire sooner rather than later. Here's my thinking, beyond the obvious arguments about how they may be too old to do the job.

1) New blood. There are plenty of good middle-aged lawyers who are waiting to bring a fresh perspective and energy to the bench. Even in systems where there are judicial "elections," they are generally not highly contested affairs. Age limits are a good practical way to clear the way for better judges.

2) Turnover can be good. Although today's elderly are surely healthier than the elderly of yesterday, old judges are just as susceptible to the dreaded "black robes disease"  as they used to be. This is another reason for new blood. (Although, to be fair, this particular disease often goes away with age rather than worsening.)

3) Generational equity. I think it's kind of pathetic to see rich old people hanging on to these awesome jobs while qualified people in the next generation scrounge for work—or at least soak up all the available work so that the next generation down has to scrounge for work. I think there should be a strong presumption that old judges should step aside to let the next generation take over.

4) Joe Paterno.

Obviously not every 70-year old is financially independent. But if you are a 70-year who was successful enough to become a judge, you should be financially independent. If you aren't, you likely just spent too much money on stupid things and you do not have my sympathy. On the contrary, I condemn you!

It's not just judges who should retire at 70 or thereabout, by the way. All rich people should retire at around 70 if they can, and that should be the societal expectation and the societal pressure. I'm not saying that there should be laws to enforce this, but we should fogey-shame rich people who hang on to their high-paying jobs past the point of reason.

An example in the news recently is E. Gordon Gee, the president of Ohio State. Mr. Gee is a guy who thinks he's a lot cleverer than he really is, so he's constantly getting into trouble for running his mouth off. (This is a sort of corollary to black-robes diseases—these successful academics who never get negative feedback from their underlings on a day-to-day basis start thinking that people are laughing at their offensive and idiotic jokes because they are actually funny, when the truth is that they're laughing because it is part of their jobs.) After Mr. Gee's most recent outburst became public—in which he insulted "those damn Catholics" at Notre Dame, among many others—he got a stern rebuke from the board of trustees at Ohio State. "One more strike and you're out!" they said, effectively.

But Gee is 69-years old. He makes about $2 million a year now, and he's presumably been making seven figures for many years, and six figures for decades. He is the .00001%. He should just retire. More importantly, everybody around him, including the trustees, should be saying to him, "Why don't you just retire? Why are you hanging on to this awesome, high-paying job that some other person could do without embarrassing the entire state?" The regents' threat to fire him the next time he insults an entire ethnic group is pretty empty—there's no way Gee needs the money. Although I guess he'd rather not be embarrassed by being fired, that's the only thing on the line.

That's a long tangent. Point is, old rich people should be retiring more to make way for the poor and unemployed young people to fill up the ranks. I think it's morally unacceptable for them not to accept a life of leisure at this point.

R.I.P. Judge Wesley Brown

The Gillette-Torvik blog is saddened to learn of the death of Judge Wesley Brown. Judge Brown was a judge in the United States District Court in the District of Kansas and the oldest sitting judge in the country's history. He was 104 and still hearing matters in 2011. The Wichita Eagle has a nice summary of the judge's accomplishments here.

Incredibly, Judge Brown was not the longest tenured judge in our nation's history. That title belogns to Judge Joseph Woodrough. He was a district court judge in Nebraska and then a judge on the 8th Circuit, for a total of judge for 61 years. However, according to Wikipedia, Judge Woodrough did not perform any judicial duties the last 16 years of his life. So in terms of active service, Judge Brown has the record.

At 104, Judge Brown was not particularly close to hitting oldest person in the world status. One hopes this means that he was not targeted by the serial killer that we discussed here.

David Prosser goes on the 30-day DL

As I reported shortly after he won reelection to the Wisconsin Supreme Court, David Prosser is old.  At the time, I predicted that he'd retire well before his ten-year term ended. Time will tell whether that prediction comes true, but early indications are support it.  We're just three months into his new term, and Prosser is already taking a health-related leave of absence.

UPDATE:

Justice Prosser is dealing with a nasty bout of diverticulitis.  Hopefully he gets well soon.

David Prosser is old

So it looks like David Prosser won that contentious Supreme Court election in Wisconsin and will get to serve another 10 years on the Wisconsin Supreme Court.

Or will he?  Prosser is 68-years old, an age when most people are retiring—not signing up for another ten years of work.  No doubt Prosser will show up for work in August, when his next term starts.  But will he last the whole ten years?

Doubtful.  My guess is that he will retire in a couple years so that Republican Governor Scott Walker can replace him with another Republican -- another Republican who would then run for reelection with the nearly all-powerful mantle of incumbency.  (Though who knows—Chief Justice Abrahamson was reelected at age 75 in 2009, and there are no indications that she's considering retirement.)

This is not some devious plot.  It is par for the course.  Indeed, it's how Prosser got his seat on the Court in the first place.  An open seat in a judicial election—especially for the highest court—is a very rare event.  Usually a vacancy occurs mid-term, either because a justice gets elevated to the federal bench or because a justice retires, and the vacancy is filled by an executive appointment.  

This highlights one of the weaknesses of selecting judges by election: in practice it is usually indistinguishable from a system that selects judges by executive appointment, except that the executive-appointment systems usually have some method for ratifying the the executive's choice.  Even in states with judicial elections, most judges still ascend to the bench by appointment.  Often, as in Wisconsin, these mid-term appointments are entirely within the executive's discretion—that is, the Governor gets to appoint whomever he or she chooses, and the choice does not need to be ratified by the legislature.  Then, once benchified, it is very, very rare for a judge to be defeated in an election.  In many cases, as in Wisconsin, the judicial elections are "nonpartisan," so the only information the ballot conveys to the voter is (a) the candiate's name and (b) which of the candidates is the incumbent.  Unsurprisingly, voters tend to choose the candidate who is already a judge.  The end result is a bench that is staffed by political appointees who never even had to face a ratification hearing and who then get rubber stamped by a clueless electorate.

And when the electorate doesn't rubber-stamp the executive's selection, it's often because of issues that we'd probably prefer not to intrude upon judicial elections.  The KloppenProsser election is a good example: at best, it was a proxy battle being waged over pure politics; at worst, it was an effort to affect the outcome of a particular case (the legal challenge to the collective bargaining bill, which is sure to reach the Supreme Court).  Either way, it's beneath the ideal of what a judicial election ought to be about.

What should a judicial election be about?  In my view, it should be solely about judicial philosophy.  For example, the campaign to "unretain" the three justices who joined the Iowa Supreme Court's unanimous decision overturning the state's law banning same-sex marriage was at least focused on an issue of judicial philosophy: restraint versus activism.  You can argue the merits of the issue all day long, but at least it was an argument about judging.  Unfortunately, those are not the kind of issues being argued about in the recent Wisconsin judicial elections.