New Jersey’s court system currently has 65 judicial vacancies, leading one lawmaker to propose raising the state’s mandatory retirement age for judges in order keep exising jurists on the bench.
Like many states, New Jersey currently requires its judges to retire at age 70. But a mandatory retirement system presumes that the state will quickly fill judicial seats as they become vacant. In fact, both Governor Phil Murphy and the state legislature have been slow to act on existing vacancies, creating a crisis so significant that nearly eighty retired judges have been temporarily called back into service to help clear the caseload backlog.
State Senator Shirley Turner is proposing raising the mandatory judicial retirement age to 75. It is a stopgap measure, to be sure. The only way to solve the crisis is for the other branches of state government to take their nomination and confirmation responsibilities seriously.
The situation in New Jersey perfectly illustrates the resource challenges that court systems must navigate in the 2020s. The heightened politicization of every aspect of American life has led the executive and legislative branches to treat each judicial vacancy as an zero-sum partisan event. (See the current kerfuffle in New York.) Meanwhile the courts, unable to secure the human resources they need to address their dockets and unable to control the flow of cases into the system, have to resort to recalls and other strategies to keep up with their workload. No wonder public confidence in every branch of government is in decline.
The Supreme Court of Iowa has selected Justice Susan Christensen to be its next Chief Justice. She will take over duties from Acting Chief Justice David Wiggins, who is set to retire from the court in mid-March. Wiggins stepped into the interim role after the sudden death of Chief Justice Mark Cady last November.
Christensen will administer to and preside over a five-member court that has been radically remade in the last few years. Governor Kim Reynolds has already appointed three members of the court since 2017, and the Wiggins retirement will provide an opportunity to appoint a fourth justice.
One of the (many) drawbacks of partisan judicial elections is that strong, knowledgeable, and experienced incumbents are at risk of being removed from the bench based solely on party affiliation. But the reverse is also true: in jurisdictions where judges are unaffiliated and have life tenure, it is often difficult to create any turnover in the judicial ranks — and when turnover does happen, it can happen all at once.
This article in the Providence Journal considers the case of Rhode Island’s supreme court, in which the youngest member is 68 and the oldest in his eighties. There is likely to be some radical turnover coming in the next few years as the current justices retire. It will present a special opportunity for whoever is governor as vacancies, but it also raises important questions about whether one governor should benefit from what could be seen as fortuitous timing.
These are the same questions that are routinely raised at the federal level, thus far without a clear answer.
That is the proposal advanced by Kyle Sammin at The Federalist. Sammin recognizes the folly of term limits for Supreme Court Justices, which would require the practical impossibility of a constitutional amendment. Instead, he suggests that we might promote more frequent turnover by requiring Justices to once again “ride circuit” — the 18th and 19th century practice of having Justices travel across the country to hear more ordinary cases during breaks in the Court’s regular term. Sammin states:
Restoring circuit duties to the Supreme Court would provide a natural way of decreasing tenure on the bench. Travel is not as difficult in 2019 as it was in 1819, but it can still be exhausting. If circuit riding had still been a part of the job, infirm justices such as William O. Douglas, William Brennan, and John Paul Stevens would have left the bench before they were fully in decline. Ginsburg would likely have retired a decade ago, as many on the left wish she had. Instead, arrogance and ease lead to justices remaining in their jobs when they are not up to the tasks appointed to them.
I am intrigued by this proposal, although I am not as optimistic that the additional travel burden would put off any but the most frail Justices. The Court’s current members — even those well into their eighties — are already frequent travelers. They speak at law schools, promote their books, accept cozy summer teaching positions, and so on. Open Secrets, for example, found that in 2018 the Justices collectively took 64 trips that were paid for by others. Justice Ginsburg alone took a dozen trips to far-flung places around the world. And even though riding circuit would involve real judicial work rather that quasi-legal junkets, it seems fair to say that all the Justices truly enjoy their day jobs.
What do you think, readers?
This is an interesting story from Owensboro, Kentucky. Judge Joe Castlen retired from the local Circuit Court, but agreed to keep working in his position until a new judge could be elected to take his place. And although the election will not take place until next month, we already know the winner: District Judge Lisa Payne Jones, who is the only candidate on the ballot.
Jones’s inevitable ascension to the Circuit Court leaves a hole on the District Court, and the process of filling that seat might take some time. So Judge Castlen, who previously served on the District Court, agreed to fill that seat again until a successor is found — meaning effectively that he will swap places with Judge Jones.
Good for Judge Castlen for agreeing to take on the new role so that the District Court can keep up with its docket. It’s an elegant, if temporary, solution to a curious staffing problem.
It has been a while since we checked in on Poland’s judicial reforms, most of which have been openly hostile to the country’s judiciary. One of the latest reforms would lower the retirement age of judges from 70 to 65, effectively removing about two dozen experienced judges from the bench, and correspondingly allowing the government to appoint new judges in their place. It’s court packing without the packing.
The European Commission sued Poland over the legislation in the European Court of Justice (ECJ), on the grounds that it was part of a larger set of “systemic threats to the rule of law” which could trigger the loss of Poland’s voting rights in the European Union. In October, the ECJ suspended the legislation pending a permanent resolution. It upheld the interim injunction on Monday.
In response, Polish President Andrej Duda signed new legislation revoking the early retirement bill. Is this a sign that the Polish government is moderating its stance on judicial reform under EU pressure? Stay tuned.
In its latest move against the Poland’s increasingly restrictive judiciary laws, the European Union has asked its top court, the European Court of Justice, to suspend a recent Polish law that would force the retirement of more than one-third of its top judges.
The body said in a statement that “the Polish law on the Supreme Court is incompatible with EU law as it undermines the principle of judicial independence.”
Poland’s law on the retirement of judges at the Supreme Court put 27 of 72 judges at risk of being forced to retire, the Commission said, with no clear criteria on who can stay.
The Commission gave Warsaw a first warning in July, when the law took effect, and followed it up with another step in August before taking Monday’s decision.
Previous coverage here, here, here, here, and here.
In the wake of a new Polish law lowering the mandatory retirement age of judges from 70 to 65, the European Union has advanced to the next stage of its infringement procedure against the PiS (Law and Justice Party) led government.
The new Polish law on the Supreme Court lowers the retirement age of Supreme Court judges from 70 to 65, which puts 27 out of 72 sitting Supreme Court judges at risk of being forced to retire. This measure also applies to the First President of the Supreme Court, whose 6-year mandate, set out in the Polish Constitution, would be prematurely terminated.
According to the law, current judges affected by the lowered retirement age are given the possibility to request a prolongation of their mandate by the President of the Republic, which can be granted for a period of three years, and renewed once. There are no criteria established for the President’s decision and no judicial review is available if the request is rejected.
The Commission’s position is that the Polish law on the Supreme Court is incompatible with EU law as it undermines the principle of judicial independence, including the irremovability of judges, and thereby Poland fails to fulfil its obligations under Article 19(1) of the Treaty on European Union read in connection with Article 47 of the Charter of Fundamental Rights of the European Union.
The Polish government has been given one month to comply with its obligations. I wish I could be optimistic that it will.
His letter to the President is here (h/t SCOTUSBlog).
Last week I noted the lawsuit filed against Florida Governor Rick Scott by Jacksonville attorney David Trotti. Scott has moved to fill several seats on the state bench, which opened due to curiously timed judicial retirements. Trotti alleges that the retirements create a vacancy for such a short period that the seats should be filled by popular election.
The trial court ruled in favor of Trotti, which would have prevented the Governor from filling the seat. But the Scott Administration appealed, which automatically stayed the decision and once again enabled the Governor to appoint a new judge. Trotti convinced the trial court to vacate the stay, but Scott then convinced the appellate court to reinstate the stay.
Trotti has now appealed to the Florida Supreme Court, arguing that the stay (and a Scott appointment) will eliminate the rights of citizens to vote for the judicial candidate of their choice. In his petition, he noted that several judges have times their retirements to create just enough of vacancy to permit the Governor to claim the right to fill the seat through appointment. As I noted in my earlier post, I am no fan of judicial elections, but this certainly smells like people are gaming the system.