Monday, July 17, 2017
According to Law360, Seventh Circuit Judge Richard Posner (age 78), advocated for mandatory judicial retirement ages in a recent interview published by Slate. Judge Posner suggested setting the retirement age at around 80 years old, saying "[t]here are loads of persons capable of distinction as Supreme Court justices; no need for octogenarians." Currently, Justice Kennedy is 80 years old (he turns 81 in just a few days--happy birthday Justice Kennedy), and Justice Ginsburg is 84.
The notion of a mandatory judicial retirement age is not new. In fact, many states have such rules, although most states set the age at 70. The problem with a federal judicial retirement age is that Article III of the Constitution states judges "shall hold their Offices during good Behaviour," which has been read to confer life tenure on federal judges. Article III, however, is not an obstacle for Judge Posner who, according to the article, reads the clause "as simply meaning judges can be fired at any age for bad performance."
Interestingly, there have been efforts to increase state mandatory judicial retirement ages in recent years, due in part to the fact that life expectancies are increasing. These efforts, however, have largely been rejected by voters in the past. In fact, Oregon voters recently rejected an effort to remove the mandatory judicial retirement age of 75. On the other hand, last year Pennsylvania voters, by a rather narrow margin, approved an increase in the mandatory retirement age from 70 to 75.