Bar Journal - Spring 2006
Old Age and Judging
By: Attorney Michael Lewis
“It is revolting to have no better reason for a rule of law than that it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past.”
—Justice Oliver Wendell Holmes, Jr.
Part II, article 78 of the New Hampshire Constitution provides that “(n)o person shall hold the office of judge of any court . . . after he has attained the age of seventy years.”
This means that regardless of whether a judge is able to bestow the benefit of added wisdom to the process of judging through his wealth of experience, and regardless of whether he remains more productive than many of his younger counterparts, he must relinquish the gavel to greener blood once he has reached the age of 70.2 The question addressed by this essay is whether such a rule makes sense in modern times. I conclude that it does not and I recommend that the rule be replaced by limits on judicial tenure that are not explicitly related to age.
There can be but a few affirmative reasons why a 70-year age limit continues in force more than 200 years after it was enacted. One may be a blanket supposition that the quality of justice would be impaired if imparted by the ancient.3 Another may be the desire to place out-side limits on the length of judicial tenure in order to ensure democratic accountability. A third may be the desire to keep judges from becoming stale and out of touch. Still a forth (related to the third) may be the desire to ensure judicial turnover.4
If the first is the reason, then the question we must ask ourselves is whether modern advances in medicine and life expectancy should change our view of when one will be too old to competently serve as a judge. If the second, third and fourth are the reasons, we must ask whether there are better, and less discriminatory ways to ensure democratic accountability, judicial freshness, and the turnover of personnel.
In what follows, I explore these questions. In the first section, I briefly describe the historical origins of the rule as well as the relevant historical characteristics of the time in which it was enacted. In the second section, I examine how advances in medicine and public policy should affect our evaluation of the rule in 2006. Finally, in the third section, I examine an alternative way in which judicial tenure may be limited, a way which I suggest the state adopt.
I. The Wisdom of Ages
It may come as a surprise to some that New Hampshire was the first of the original thirteen colonies to draft a written constitution in the wake of hostilities with Great Britain.5 Bereft of a departed royal government and on the verge of revolutionary war, citizens banded together to enact a parliamentary alternative that vested legislative, executive and judicial power in the hands of a single elected branch. For a number of predictable reasons commonly associated with single branch rule, citizens called for a change in 1784. This time it was the spirit of Montesquieu’s theory of separation of powers that prevailed, giving birth to a fledgling independent judiciary with life tenure and salary protection.6
As Susan E. Marshall remarked in her recent account of the subject, “The drafters of the 1784 constitution had the foresight to realize that the document they created would require review and perhaps revision after a relatively short period of time.”7 They therefore included a provision in the 1784 draft requiring the legislature “to call for the election of a convention to review the constitution seven years after its adoption.”8 As a result, the historic Constitutional Convention of 1791 was held in Concord, and yielded a blizzard of important changes to the then only recently adopted Constitution of 1784.9 Among them were amendments securing the independence of the executive, restoring the title of “governor” to the chief executive officer (under the 1784 Constitution, the “chief” was referred to as the “president”), dividing the state into 12 senatorial districts, and eliminating poll taxes that formally prevented paupers from voting.10
Some of the most far reaching changes proposed related to the state’s judiciary. At the helm of this effort was a young lawyer-statesmen named William Plumer. Born in Newcastle and raised in Epping, Plumer’s first foray into public life came in opposition to the drafters of the 1784 constitution, who succeeded in restricting free speech rights to Christians, and the right to hold higher public office to Protestant Christians.11 Fortunately, these very strong and likely unpopular views did not prevent him from advancing in the world of state politics, and by the age of 31 he had become one of the state’s most prominent attorneys, as well as the speaker of the New Hampshire House of Representatives.12
Even more than the Constitution’s religious tests, Plumer was absorbed by questions regarding the jurisdiction and political structure of the state’s judiciary.13 Indeed, in January 1791, he was able to win appointment to the New Hampshire House committee whose charge it was “to take into consideration the present judiciary System and report such alterations therein as they may think necessary or propose such new mode to the administration of Justice as may to the appear expedient.”14 Among the changes he proposed at the 1791 constitutional convention was an amendment that would grant the New Hampshire judiciary independent constitutional status, as well as amendments abolishing some of the more minor courts populated by non-lawyer justices.15 Opponents sought to sully these reforms by including an amendment that would have had the state’s judges stand for re-election every seven years. To stymie this effort, Plumer added a minor, relatively obscure amendment requiring that all judges retire at he age of 70.16
II. Advances in Medicine Since 1791
One question we should ask ourselves in evaluating this provision was what was likely in the minds of New Hampshire citizens when they approved it. Because this was not one of the hotly debated reforms proposed in 1791, there is not much information on the subject. One good guess would be that forced retirement at age 70 moderated the anti-democratic aspects of the least democratic branch of the state government and ensured that the courts would be infused with new blood from time-to-time. Another would be that citizens of the framing generation believed that “old age” would impede judicial performance.17
The former is more likely the reason than the latter given what we know about life in pre-Civil War America.18 As one scholar has stated, “[a] scrim of forgetfulness shields us from the rather ugly reality of growing old in the America of just a few generations past.”19 Prior to 1860, “living conditions and public sanitation were appalling by today’s standards” and almost half of those who were born that year died before they reached the age of 65.20 A 70-year age restriction was therefore unlikely to serve as much of a democratic check on judges living in an age where few were fortunate to live that long.
Thankfully, improvements in sanitation and health care have resulted in longer and healthier life spans since these darker days. The average life expectancy is now somewhere around 77 years old, with female life expectancy exceeding male life expectancy by about five years.21 Some believe that these numbers will continue to increase by one to two years each year over the next decade until the numbers level off.22 That would mean the next generation can expect to live, on average, to the age of 87.
Furthermore, with the decoding of the human genome, an “event that may reveal the fundamental processes of particular illnesses and of biological aging,” there is “good reason to hope that Alzheimer’s disease, diabetes, and some forms of cancer will become curable or even preventable.”23 This may mean that people will not only live longer lives, those lives will be healthier and more productive than long lives lived in the past, and certainly in the distant past.
III. What the New Developments Mean to the Problems at Hand and Who it Affects
These new developments radically destabilize the assumptions about human life-span that underlie New Hampshire’s 70-year age limit. Unlike in 1790, it is now, and will become increasingly likely, that a judge reaching the age of 70 will live a long and productive life deep into his 80s. This fact will pose career-advancement problems for the healthy lawyer in his early 60s who might be considered a strong candidate for a position on one of New Hampshire’s courts but is likely to be passed over for someone younger who is able to serve the state for a longer period of time under the current constitutional arrangement.24
Even more problematic may be the effect of the age restriction on women lawyers, who have and continue to enter the profession in larger numbers each year.25 Demographics suggest that women live even longer than men, and are productive for a longer period of time.26 Add to the discussion the fact that women postpone or delay their careers to rear children at a far higher rate than men, and you have a situation where women are not only prevented from rendering service during a productive time in their lives, but where the time during which they are able render service is shortened by the roles they continue to play within the structure of the family.27 One can imagine, for instance, a woman attorney beginning her career again at age 50 after a 15-year hiatus, rising to professional prominence by the age 60-65, but being passed over for a position on the bench because she could only serve the state for a short period of time. And this despite the fact that she could continue to be quite productive long after the age of 70.28
IV. Are There Other Good Reasons for Keeping the Provision?
If we agree, then, that the 70 year age-limit arose out of policy judgments that reflect the realities of a time when life was much shorter, less pleasant and less inclusive than it is now, we must ask whether there are other good policy reasons for keeping the rule around anyway. Even if we discover that there are, however, we should consider whether we can find ways to achieve these policy ends without discriminating on the basis of age.29
The primary, nondiscriminatory reason to limit tenure to those under the age of 70 today is likely to ensure that there will be some proper judicial turnover. Not only, it could be hypothesized, does this policy strengthen the connection between the judiciary and the people, it prevents judges from becoming stale, complacent and out of touch. But if this is really the goal, it is easy to imagine a scenario in which the rule would have almost no effect on ensuring meaningful judicial turnover. Indeed, it could have the opposite effect. Imagine, for instance, the justice who is appointed to the New Hampshire Supreme Court at the age of 45. If all that stands in the way of the justice and retirement is his or her health and the mandatory age-limit, that justice could serve in the same seat for 25 years. That is twelve gubernatorial elections.30 The risks that this arrangement could prove both anti-democratic, and judicially stultifying are therefore quite serious.
What is more, this arrangement could undermine the overall quality of the judiciary. A governor seeking to have a long-standing influence over policy in the state would quite reasonably look first at young talent to fill seats on the bench, seats that might otherwise be filled by men and women with more talent and experience.31 This would be problematic for a number of reasons, not the least of which could be that the judiciary would potentially be deprived of the kind of “wisdom” many deem crucial to its proper functioning.32
What, then, can be done by way of reform? Would a law suit suffice? District Court Judge George H. Grinnell filed such a lawsuit when he reached the age of 70 in 1981, asserting that the provision in question violated his federal and state equal protection rights.33 His claims were denied.34 Subsequent attempts in other states to challenge similar provisions have similarly failed.35 Democratic action therefore appears to be the only viable alternative. And given the apparent desire to limit judicial tenure in some way, democratic action might make sense regardless.
One potential alternative would be to repeal the mandatory age-limit rule and replace it with age-neutral term limits. An example would be a rule that would allow judges to serve a maximum of 15 years on any given court.36 A 15-year rule would ensure that the judiciary would be replenished with new blood from time-to-time. It would also ensure that citizens would have a more frequent (albeit still indirect) say in the selection process. Unlike the 70-year age limit, however, a 15-year limit would prevent any one judge from serving across the generations, and it would eliminate a governor’s incentive to appoint a younger and possibly less accomplished jurist to the court in order to extend his policy-sculpting influence over a greater period of time. Such a rule would thus eschew the discriminatory and antiquated views implicit in the age-based provision, while preserving and even enhancing many of the current provision’s strengths.
Critics are likely to attack this proposal by arguing that it would harm the independence of the judiciary. They might argue, for instance, that judges would begin to make decisions with an eye toward having to reenter the market place as non-judges seeking employment post-tenure. There are a number of answers to this argument. The first is that this would be a problem regardless of the type of term-limiting policy in place. After all, no judge is bound to serve on the bench for any fixed period of time. Therefore the threat that a judge might decide cases in order to secure his or her chances at gaining employment post-retirement are ever-present. The second is that judges already have an incentive to decide cases in an effort to advance their future career prospects. A Superior Court judge, for instance, might decide cases in a certain way so as to secure consideration for a position on the Supreme Court. The third counterargument, the one most closely related to the theme of this paper, is that the increase in life-expectancy is likely to require judges who are forced to retire from the bench at the age of 70 to consider their post-tenure career prospects anyway. I therefore view these claims as little consequence to the overall proposal.37
Unquestionably, great respect must be afforded the structure of government established by the framer’s of our state’s constitution. Even they recognized, however, that changing times required amended policies.38 Medicine and nutrition have helped secure for current and future generations longer and healthier lives. Political science has helped us to recognize and overcome stereotypes of all sorts, including those directed at the aged. The law provides us with a mechanism for internalizing these discoveries. We would therefore be remiss if we did not use it to effect the proposed changes to the provisions of the New Hampshire Constitution regulating judicial tenure. The failure to do so will result in the perpetuation of a rule no longer in keeping with the realities of our times.
1. This essay is inspired by Richard McNamara’s discussion of the subject in his article, Senate Confirmation Hearings and Judicial Independence, N.H. Bar News, Oct. 21, 2005 at 4 (pointing out that “[l]ife expectancy has risen dramatically not only since 1791, but even in the last 100 years,” and that it is therefore “indisputable that appointment of a New Hampshire judge ‘for life’ in 2005 means something substantially different . . . largely because of advances in medical science”).
2. Vermont and Massachusetts share this rule. See Judith Resnick, Symposium: Jurocracy and Distrust: Reconsidering the Federal Judicial Appointments Process: Judicial Selection and Democratic Theory: Demand, Supply, and Life Tenure, 26 Cardozo L. Rev. 579, 615, n. 111 (2005).
3. At least one Chief Justice of the United States Supreme Court has expressed this view. See David Garrow, Mental Decrepitude on the U.S. Supreme Court: The Historical Case for a 28th Amendment, 67 U. Chi. L. Rev. 995, 1016 (2000) (quoting Chief Justice Taft as having said that: “[I]n a majority of cases, when men come to be seventy, they have lost vigor, their minds are not active, their senses not acute . . . In the public interest, therefore, it is better that we lose the services of the exceptions who are good judges after they are seventy and avoid the presence on the Bench of men who are not able to keep up with the work, or to perform satisfactorily”).
4. See Tina E Sciocchetti, Mandatory Retirement of Appointed State Judges, 85 Nw. U. L. Rev. 866, 889-90 (1991) (including among the reasons for such a provision the desire to avoid the embarrassment of removing aged judges, and the difficulty of implementing judge-by-judge evaluations).
5. See Charles G. Douglas III, Judicial Review and the Separation of Powers Under the New Hampshire Constitutions of 1776 and 1784, 18 N.H.B.J. 250, 251 (1977).
6. See id. at 258-60.
7. Susan E. Marshall, The New Hampshire Constitution: A Reference Guide at 12 (2004).
9. Indeed, as a result of this convention, for many years the New Hampshire Constitution was wrongly referred to as the “1792 Constitution.” Id. at 15.
10. Id. at 14.
11. William Plumer, Jr., The Life of William Plumer (1857) at 50. Plumer, a one-time Baptist, turned avowed skeptic penned a scathing letter in a major New Hampshire newspaper attacking attempts to limit constitutional rights to those in the religious majority; John Reid, Controlling the Law (2004) at 2-8 (manuscript).
12. Id. at 2-5.
13. Id. at 2-10.
15. See id. 2-16-17.
16. Marshall, supra n. 7 at 14; Reid, supra n. 11 at 2-20; E-mail from Professor John Reid, 2/26/06.
17. This view persisted, at least nationally, up through the New Deal era, when journalists successfully pinned the “less than flattering nickname” “Nine Old Men” to the United States Supreme Court in the wake of the Court’s decisions invalidating many of Roosevelt’s policy programs. See Garrow, supra n. 3, at 1020. This led Attorney General Homer Cummings to suggest, in January 1936, that the United States Constitution should be amended to require justices on the United States Supreme Court to retire at 70. Id.
18. This is true, even if it appears that legislators saw the provision as the bounty of a bargain struck in exchange for abandoning the proposal to make judges stand for election.
19. Henry J. Aaron, Longer Life Spans: Boon or Burden, Daedlus (Winter 2006) at 11.
20. Id. According to Judge Richard Posner, in 1840, only 50 percent of 20-year-old Americans could expect to survive to 65 and only 38.3 percent to 70. Seventy-years old in 1790 was considered an age few, even among the wealthy class, were likely to live well beyond. Richard Posner, Aging and Old Age 37 (1995).
21. Daniel Meador, Thinking about Age and Supreme Court Tenure, in Reforming the Court 115 (Roger C. Cramton & Paul D. Carrington, eds. 2006).
22. Aaron, supra n. 19, at 15 n. 8. Still others have suggested that newborns will live into the next century. Id.
23. Id. at 17.
24. Paul Carrington and Roger Cramton, Reforming the Supreme Court: An Introduction, in Reforming the Court 7 (Roger C. Cramton & Paul D. Carrington, eds. 2006) (stating that without term-limits, “presidents have an incentive to choose a less-experienced and less-qualified younger appointee who, if a correct assessment is made of the appointee’s future constitutional decision-making, is likely to provide the President an even longer influence on the Court’s decisions”).
25. Timothy O’Brien, Why Do So Few Women Reach the Top of Big Law Firms, New York Times (March 19, 2006).
26. Posner, supra, note 19 at 39 (stating that “in 1989 there were only 39 percent as many men as women among Americans 85 and older, meaning women outnumbered men by better than 5 to 2 in this age group, while in the entire population 65 and above women outnumbered men 3 to 2”).
27. O’Brien, supra n. 25.
28. Judge Betty Fletcher of the Ninth Circuit Court of Appeals, for instance, took senior status at age 75, but continues to serve actively as a senior judge into her 80s. Justice Sandra Day O’Connor retired at age 75, but there is no indication that she could not have served productively for longer.
29. After all, it is our national policy not to do so. See The Age Discrimination in Employment Act of 1967 (Pub. L. 90-202) (ADEA) (stating that the purpose of the act was to promote the employment of elderly people on the basis of ability, not age, and to eradicate arbitrary discrimination in employment based on age).
30. Carrington and Cramton, supra n. 24.
32. Posner, supra n. 20 at 192. Judge Posner has himself stated that it is important for a “judge to bring to his job a background knowledge about the behaviors out of which the cases he will be judging arise” so that he may be able to clarify issues that have been muddied in the course of advocacy. Id.
33. Grinnell v. State, 121 N.H. 823, 825 (1981). Grinnell also asserted an Age Discrimination in Employment claim, but the court rejected it because, at the time, the Act only applied to those under the age of 70. Id. at 828. That provision of the Act has since been repealed. 29 U.S.C. § 623.
34. Grinnell, 121 N.H. at 828.
35. See Gregory v. Ashcroft, 501 U.S. 452 (1991) (declining to invalidate Missouri’s mandatory retirement provision under the ADEA).
36. Two professors have proposed that an 18-year term limit should be imposed upon the tenure of United States Supreme Court justices. Steven Calabresi & James Lindgren, Term Limits for the Supreme Court: Life Tenure Reconsidered, in Reforming the Court 15, 48 (Roger C. Cramton & Paul D. Carrington, eds. 2006).
37. I do not profess to know anything about pension arrangements for state court judges, but I imagine that a system could be arranged by which judges serving out their terms would be entitled to the same pensions they receive under the current system. The costliness or thrift of such a system is beyond the scope of this paper, though I imagine it would be something to be considered if this proposal were taken seriously.
38. See Marshall, supra n. 7 at 12.
Attorney Michael Lewis was admitted to the New Hampshire Bar in 2004 and is now a litigation associate at the law firm of Arnold & Porter in Washington, D.C. In 2004, he was a law clerk to Chief Judge Paul Barbadoro, Federal District of New Hampshire.