James Gill: Superannuated judges

Opinions may vary on whether age really brings wisdom, although the proposition does seem to make more sense as the years go by.

Not enough legislators agree, however, to pass a constitutional amendment scrapping mandatory retirement for judges when they reach 70. The Senate was in favor, with only two dissents, but the House put the kibosh on at the tail end of the session last week, falling comfortably short of the two-thirds required for a referendum.

Evidently lots of House members figure that, even if wisdom may increase, or at least remain undiminished, with age, there is no guarantee. Some oldsters will indeed lose their marbles. Better therefore to bid a few wise old owls goodnight than risk turning justice over to old codgers who can’t remember what day it is.

That theory has long held sway in Louisiana, although the judges of yore could linger longer than they can now. Under the constitution of 1921, they were required to retire at 75, or 80 if they had been on the bench less than 20 years. Such was life expectancy at the time that jurists, wise or not, were more likely to withdraw voluntarily, or drop dead, than to be forced out.

Not these days, however. Since the mandatory retirement age was lowered under the current constitution, the frisky septuagenarian has become commonplace. Judges, moreover, are the only elected officials in Louisiana subject to ageism.

The Legislature, with its liberal sprinkling of attorneys, can be relied upon to do judges a favor when only a majority vote is required, however. Thus, although the state cannot afford raises in these straitened times, an exception has just been made for judges, who already make more than the national average. Now they have even more reason to rue the decree that, once they turn 70, they can only stay until their current term is complete.

The view that retirement at 70 is a foolish waste of accumulated sagacity is particularly common among judges in their sixties, who have lobbied hard for an amendment giving them an extra five years. The proposition made it onto the ballot in 1995, but voters said no. A similar bill was filed in 2003, but it died on the Senate floor.

The judges’ friends in Baton Rouge evidently figured that, if they couldn’t raise the retirement age to 75, they might have better luck if they tried to do away with it entirely. No, that was not a triumph of logic, but perhaps their reasoning powers will increase when they got older.

Legislators being subject to term limits themselves, some of those who blocked the amendment resented the idea that judges should be allowed to remain in office indefinitely. Perhaps it was the dog-in-the-manger spirit, rather than a desire to keep gaga geezers off the bench, that ensured judges will still be forced to retire in what they regard as their prime.

Those judges can point to their federal brethren as proof that even lifetime appointments do not undermine the course of justice. Besides, judges in either system may be removed on grounds of disability and senile dementia would stick out a mile. Well, a severe case would. On the state level, even a mild case might become a major issue at election time. It is most unlikely that justice would suffer without mandatory retirement; force out an old-timer and you might wind up with a whippersnapper who, if the conversation turns to certiorari, will say he sure wouldn’t mind driving one.

Indeed judges who are still wet behind the ears have long been a bigger threat to justice than those stricken in years. Until 2006, a candidate for a judgeship, even on the Supreme Court, needed only to have been an attorney for five years, but the constitution was then amended. Now a Supreme Court candidate must have practiced for 10 years. For the lower courts, eight is enough.

The qualifications were presumably changed on the theory that experience brings wisdom. Superannuated judges don’t doubt it, and will no doubt keep pushing for a constitutional amendment. You know they won’t forget.

James Gill can be contacted at jgill@theadvocate.com.