Jonathan Remy Nash (Emory) has posted his new article, Judicial Laterals, on SSRN. It is a short and interesting empirical study of “lateral” moves by sitting judges, either from a state court to the federal bench, or vice versa.
Nash’s data set confirms many intuitions about such lateral moves. Unsurprisingly, a move from state court to federal court is overwhelmingly more common than a move from federal to state. Judges do occasionally leave the federal bench to join a state court, but almost always to “step up” within the court hierarchy (by moving, for example, from a federal district court to a state supreme court). Nash also examined connections between lateral decisions and factors such as the professionalism of the state court, the length of the judicial term on a state court, and the expected judicial salary.
The study was understandably limited to moves from one judicial position to another. But at some point it would also be very interesting to explore judges who leave the bench entirely for other legal (or law-related) jobs. We are accustomed to thinking about a judgeship as a capstone of a legal career, but there is no shortage of judges who leave before their terms are up to seek a different opportunity outside the courts. In recent years, for example, both state and federal judges have resigned their seats to take appointed political positions, run for elected office, enter academia, create think tanks, or even join the private sector.
The systemic explanations for these moves might well be complex and varied. State judges might be motivated in part by mandatory retirement ages, looming reelection or retention campaigns, higher salaries, better quality of life, or restlessness to try something new. Federal judges, with lifetime job security, are giving up something more. What motivates the change for them?
Perhaps some day we will be able to dive more deeply into that question. In the meantime, I commend Professor Nash’s piece to the reader.
The Dallas Morning News has a good story about the impact of longstanding federal judicial vacancies in Texas. For all the attention that President Trump has received regarding his judicial nominees, relatively few have been confirmed at the district court level. The article gives us a good look into districts where judicial emergencies stemming from longstanding vacancies are, unfortunately, a way of life.
Effective Monday, the Court of Common Pleas of Mercer County, Pennsylvania will be down to two full-time judges. One of those judges, Robert G. Yeatts, recently assured the public that courts will stay open for business, using retired judges to “run the courts as much as possible.”
Fortunately, the state politicians responsible for filling the seats seem aware of the problem and plan to add new judges as soon as possible. But this story beings into sharp relief the courts’ dependence on others for their most basic resources.
The Washington Post has the story here.
Beverly McLachlin retired from the Supreme Court of Canada this week, after 28 years on the court and 17 years as its chief. In her final press conference, Chief Justice McLachlin stressed the importance of shielding the judiciary from political interference. From the National Observer:
“We have deep respect for our Charter of Rights and Freedoms among the people of Canada, and we have a public that values an independent judiciary, which is the best defence,” said McLachlin.
“If people stand up and say, ‘We can’t attack our judiciary, we want an independent judiciary,’ that is — in a democracy such as ours — the best way to preserve the rule of law and judicial independence.”
The Prime Minister’s statement on Chief Justice McLachlin’s retirement is here.
Roy Moore, the disgraced judge turned disgraceful Senate candidate, received good news recently when the Retirement Systems of Alabama (RSA) Board approved his $135,000 annual pension, representing 75% of his annual salary before he was suspended from his duties as Alabama Chief Justice in September 2016. The RSA Board indicated that it has no legal authority to reject or change a judge’s pension. Moore qualified for the pension under state law due to his previous years of service and age at the time he was suspended.
Meanwhile in Washington, Senator Charles Grassley recalled ex-judge Thomas Porteous’s efforts to fleece taxpayers with his own retirement pension. Porteous was impeached and removed from office in 2010 for taking bribes and engaging in a variety of corrupt acts. Shortly before he was impeached, Porteous tried to claim disability retirement in order to secure a lifetime annual salary of nearly $175,000.
No one could be blamed for wanting to deny retirement payments to judges whose conduct in office was reprehensible, as was the case (in different ways) for Moore and Porteous. The counterargument is that reprehensible conduct cannot be clearly defined, and the ability to remove benefits will become a weapon against judicial independence. Where and how should we draw the line?
Continue reading “On paying disgraced judges”
The United States District Court for the District of Vermont will close its Brattleboro courthouse at the end of this month, with the retirement of Senior Judge Garvan Murtha. Judge Murtha was the only federal judge sitting in Brattleboro.
This is another example of the courts trying to balance cost and efficiency with access to justice. It is probably not a catastrophe for a single courthouse to close and district business to consolidate, especially in a geographically small state like Vermont. But it does say something to smaller communities about their relevance in the eyes of the justice system when an existing courthouse closes.
State judicial elections sometimes produce extreme cases of court turnover, either because interest groups target a group of judges for removal (something I explore in this article), or because an election frenzy sweeps out all (or virtually all) judges affiliated with a certain party (something I explore in more detail here). Such rapid turnover has significant consequences for the courts: the loss of institutional memory, the learning curve for an entire set of new judges, and sometimes radical changes in court culture can all result from an election sweep.
But judicial appointment systems are not immune from significant turnover as well, especially if they are combined with mandatory retirement ages. In a much quieter and more incremental way, an entire generation of state judges can be replaced by a governor in the course of the few years. Massachusetts provides the most recent example: with yesterday’s confirmation of Scott Kafker to the state’s Supreme Judicial Court, Governor Charlie Baker has now appointed five of the court’s seven members.
Incremental change avoids many of the problems of party sweeps, and carries many direct benefits. New blood and new energy come into the system, and institutional memory is generally preserved. But the frequency of new state judicial appointments is often given little attention. For all the emphasis placed on a President’s ability to reshape the federal judiciary, it is worth remembering that mandatory retirement ages (which exist in all but three states) give governors or legislatures even more power to shape their respective state courts.
New York’s Reform Party has filed a challenge to the state’s mandatory retirement age for judges. City and State New York has a detailed and well-balanced article on the lawsuit and the hurdles it faces. Key bits:
Vincent Bonventre, an expert on judical matters in New York and a professor at Albany Law School, agreed that judges should be able to serve past the age of 70, saying that many of them are just reaching their peak at that stage in terms of experience and perspective. But the lawsuit has little chance of finding success, he said.
Bonventre pointed to decisions in the New York state Court of Appeals and U.S. Supreme Court that have upheld age limits for judges. Additionally, New York’s state constitution specifically provides for a mandatory retirement age. In 2013, a proposed state constitutional amendment that would have raised the retirement age to 80 for state Supreme Court justices and extended the terms of several Court of Appeals judges fell short.
“It’s not even that the New York courts can take an independent state constitutional perspective on this thing, because the state constitution itself provides for this mandatory retirement age,” Bonventre said. “The state courts, in order to overturn mandatory retirement age, would have to do it under federal law.”
To steal a phrase from the blogosphere, read the whole thing.
The Honorable Scott Makar (First District Court of Appeal, Florida) has written a short and interesting article suggesting that Florida’s mandatory judicial retirement age should be raised from 70 to at least 73. The article revisits arguments that he made twenty years ago, and finds that those arguments are still well-supported. Among the factors supporting raising the retirement age:
- Judging is a “late peak, sustained activity” where performance peaks later in life;
- The average American life expectancy at birth is now nearly 79 years, more than eight years higher than when the current retirement age was adopted in 1972;
- Technology helps older judges continue to do their jobs efficiently;
- Florida’s demographics are consistent with older citizens working later into their lives; and
- The current constitutional provision contains a loophole that allows some judges to stay on the bench until age 73 anyway.
The judge for whom I clerked recently left the bench due to Colorado’s mandatory retirement age, and he is as sharp, fair, and thoughtful as ever. There may be good arguments against life tenure for judges, bur forcing years of accumulated experience, wisdom, and intellectual capital off the bench simply because a particular birthday rolls around seems utterly self-defeating.
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Citation: Scott D. Makar, A Modest Proposal: Raise the Mandatory Judicial Retirement Age, 18 Fla. Coast. L. Rev. 51 (2016).