Raise the retirement age

Let’s not boot good judges off the bench when they turn 70

When Pennsylvania voters go to the polls in less than two weeks, they should evaluate the proposed constitutional amendment to raise the judicial retirement age on its merits and not accept several news outlets’ and columnists’ invitation to vote down the amendment to protest the controversial wording on the ballot.

As Post-Gazette readers no doubt know by now, the General Assembly has given the green light to a constitutional amendment to push the mandatory retirement age for Pennsylvania judges to 75 from 70, and voters will be asked to approve the measure on Nov. 8.

While there has been a lively discussion about how the ballot initiative is phrased — two former Supreme Court justices sued, contending that the language is misleading, and some newspaper have energetically agreed — you can’t find many thoughtful discussions of the actual substance of the proposed amendment in print on the airwaves or on the web. That’s pretty sad because there’s a lot to recommend it.

In 1968, the last time there was a wholesale revision of the Pennsylvania Constitution, the drafters included a provision requiring state judges to retire in the year in which they had their 70th birthdays. As a result, in the half-century since, we’ve lost a lot of very able judges for no good reason.

Now voters have a chance to ease that age limit just a bit, and they should take it.

To understand why, start with the arbitrariness of any limit, much less one that requires retirement at 70. Increasing life expectancy and better medical care allow most Americans to reach 70 with sharp minds. (When Pennsylvania ratified the 1968 constitution, the average life expectancy was around 70; it’s now a little north of 75.) There is no good reason to believe that the average 72year-old judge is any less intellectually capable of doing the job than someone five or 10 years junior.

Look at federal judges, who have no mandatory retirement age. You’ll find quite a few important U.S. Supreme Court decisions written by justices older than 70. If you like the court’s 2008 decision in District of Columbia v. Heller that interpreted the Second Amendment to provide an individual right to firearm possession, bear in mind that two of the justices who voted in the majority were then older than 70, including Justice Antonin Scalia, who wrote the lead opinion. If you prefer Obergefell v. Hodges, the court’s decision last year finding a constitutional right to same-sex marriage, you should consider that three of the justices who voted for that result were older than 70 and that then-78-year-old Anthony Kennedy wrote the majority opinion.

There also is no small irony in the fact that Pennsylvania voters will see a ballot that, in one column, asks if judges should be forced to retire at 70 or 75 and, in another column, asks them to choose between two major-party candidates for president, one who is now older than 70 and the other who soon will be. If we can trust a septuagenarian to lead the free world and have access to our nation’s nuclear arsenal, perhaps we could trust someone in that age group to resolve what are generally less consequential legal matters.

The age limit is inconsistent with what already happens in practice, too. With the exception of state Supreme Court justices, most Pennsylvania judges who are forced to “retire” can then ask to serve as “senior judges.” Senior judges decide cases and receive pay, and they can stay on the bench into their late 70s. If 70 were such a critical cutoff, it is peculiar indeed that we allow many of those same judges to add the word “senior” before their title and continue to don black robes.

Opponents of the amendment usually offer two reasons.

They first point to recent judicial scandals as a sort of generalized rationale for not pushing back the retirement age. It’s a strange sort of logic because none of the judges implicated in them was between 70 and 75, and there is no reason to believe that age played a role in their behavior. Beyond that, it makes no sense to reject a measure that would affect hundreds of judges because of the conduct of a particularly small minority.

Opponents then argue that raising the retirement age would decrease the number of vacancies and deprive younger lawyers of their chance to serve. That might be a good argument if the amendment would allow judges to stay on the bench indefinitely. But a bump from 70 to 75 would delay vacancies modestly, and those who aspire to judgeships would have to wait only a little a bit longer.

The Philadelphia Inquirer, among others, also has urged Pennsylvanians to vote against the referendum to protest what some say is its misleading language and to “send a clear message to its partisan authors.” But such a protest vote would elevate process over substance. Pennsylvanians instead should cast their votes based on whether the amendment would be good for the commonwealth.

Consider the adoption of the 13th Amendment to the U.S. Constitution in the mid-1860s. As Steven Spielberg’s “Lincoln” showed, the proponents of the amendment, which prohibited slavery, obtained votes in some creatively unsavory ways. But, as we look at the 13th Amendment today, we focus on its importance in advancing civil rights and give little thought to the ugly process by which it was approved.

So it should be with the Nov. 8 referendum to amend our state constitution. Pennsylvania voters, even if they are aggrieved by the process, should ask themselves if the amendment makes a wise change. It does, and voters should approve it.