On Tuesday, New Yorkers will vote on a ballot initiative that would effectively raise the mandatory retirement age of Supreme Court and Court of Appeals judges to 80 years of age from the current 70. On the surface, this looks like a simple administrative proposal, but in truth, this is laden with political overtones.
The proposed amendment to the Constitution, amending sections 2 and 25 of article 6, would increase the
maximum age until which certain state judges may serve as follows: (a) a Justice of the Supreme Court would be eligible for five additional two-year terms after the present retirement age of 70, instead of the three such terms currently authorized; and (b) a Judge of the Court of Appeals who reaches the age of 70 while in office would be permitted to remain in service on the Court for up to 10 years beyond the present retirement age of 70 in order to complete the term to which that Judge was appointed. Shall the proposed amendment be approved?
Chief Judge Jonathan Lippman has argued in favor of this, and he has taken the campaign right to the edge of judicial ethics. Technically, judges are not supposed to get involved in electoral matters. But the Wall Street Journal notes, “In the past two months, Judge Lippman has met with groups including the Fund for Modern Courts, a nonprofit court-reform group, the New York City Bar Association and government-transparency group Citizens Union, urging them to support it.”
His case is pretty simple. The age limit was set right after the Civil War, and 70 now is nothing like being 70 then. Longer life expectancies mean that a person should not be presumed senile simply because one has lived seven decades. The New York Times has observed, “By allowing State Supreme Court justices to serve longer, the measure would also give Judge Lippman an extra 20 to 28 older but presumably sharp judges to deploy, and he has pledged to send them to clogged lower tribunals like Family Court and Criminal Court.”
However, those lower court judges are not included in the extension of the retirement age, and they make up about 75% of the judiciary. So, I would oppose this on the grounds that it is badly crafted, unfair, and not likely to address the real issue. But there’s more to this than simple oversight of a major issue.
Democratic Governor Cuomo has already appointed two judges to the statutory 14-year terms on the Court of Appeals: Jenny Rivera (who can serve until 2027) and Sheila Abdus-Salaam (who can serve until 2022). The court has seven members in all: a chief judge and six associates. If Cuomo wins reelection in 2014 and if this measure fails, he will be able to replace four judges appointed by Republican Governor Pataki: Victoria Graffeo, Eugene F. Pigott Jr., Susan P. Read and Robert S. Smith. If the measure passes, Judges Piggott and Smith get to stay on. In other words, it is the difference between appointing a bare majority and appointing six of seven. Moreover, Chief Judge Lippman reaches 70 in May 2015 — Prop 6 would let him stay on until 2023, long after Cuomo is gone. Judge Lippman claims he is interested in making sure experienced competent judges are kept on to continue serving the public and that this is not about extending his own term as Chief Judge.
The judges who benefit most from this are old, white males. So, there is an issue of diversity here as well. If one believes in a judiciary drawn from all ethnicities, genders, sexual orientations and so on, it is hard to argue that keeping these guys in place is a benefit to society as a whole.
The belief that the judiciary is above politics is, of course, unadulterated nonsense. This proposition proves it. Otherwise, it would allow all judges to stay on, not just the Supreme Court and Court of Appeals judges, and it would not apply to currently sitting judges. Mr. Lippman, if you want me to believe this isn’t about extending your own career, your buddies in the legislature (where the bill establishing the referendum was written and approved) should have included a clause saying it would go into effect only for new appointees. Instead, this looks like trying to stay on the gravy train to me.