For many state judges, their 70th birthday could cost them their jobs. But in at least 10 states, legislators are considering raising or eliminating mandatory judicial retirement at a certain age, citing longer lifespans and concern over too much turnover.
“The age 70 of today is not the age 70 of 1965,” says Arkansas Judge David Guthrie, who is supporting a bill that would change the state's 1965 law that encourages judges to retire at 70 by taking away retirement benefits from any judge over that age who decides to run for re-election. “No other branch of government has an age limit on service and federal judges are appointed for life… if it's an arbitrary limit, then that raises a challenge.”
The reasoning for raising the age limit ranges from the fact that people are living longer — the average life expectancy is 75 for men and 80 for women, up by about eight years from the 1960s — to fiscal reality. In Virginia, Senator John Chapman “Chap” Petersen sponsored a bill to raise the retirement age from 70 to 73 because, “we've been screaming about judicial costs, so it's counterintuitive to pay retirement costs for judges who are still good and then appoint new judges.”
Pennsylvania judges are adamant that their state's mandatory retirement age, 70, which is written in the state's constitution, is discriminatory. Two sets of three state judges are suing the governor, the secretary of state and the state court administrator in both state and federal court, on the grounds that the mandatory retirement age amounts to age discrimination and violates the equal protection clause under the 14th Amendment of the U.S. Constitution.
There are also two proposed constitutional amendments in the Pennsylvania legislature: a House bill that would raise the mandatory retirement age from 70 to 75, and a Senate bill that would eliminate the mandatory retirement age and leave removal decisions up to the state's judicial inquiry and review board, which already evaluates judges' fitness for office.
The odds for the Pennsylvania judges are long. Changing the state constitution requires that an identical bill pass both chambers of the legislature two sessions in a row. The measure must then win a popular vote in a statewide election. The earliest either of these provisions could be on the ballot is 2015.
That could be a major problem for the state's Supreme Court, says Lynn Marks, executive director of Pennsylvania for Modern Courts, because four of the seven justices will have reached 70 in the next five years. The turnover at the lower courts could be equally disruptive.
In all, 33 states have a mandatory retirement age, according to data collected by the National Center for State Courts, and most set it between 70 and 75. Vermont judges don't have to retire until they're 90. On the federal bench, there is no mandatory retirement age, and about 12 percent of judges serve well into their 80s, according to a survey by ProPublica.
“I'm sure it's a valid argument that some people stay too long, and that the age limit has worked to the benefit of the judiciary,” says Guthrie. “But for every judge who should be removed, there are multiple good judges who should not be removed. I have faith in the high caliber of their replacements, but it's hard to give up a good judge when you have one.”