Alaska’s constitution, like that of many western states, embraces a merit selection process for judges. An independent nominating commission (here, the Alaska Judicial Council) reviews the applications of judicial aspirants and selects a slate of names, which it forwards to the governor, who in turn must choose a candidate from the slate. The system has operated without incident for sixty years … until now.
Governor Mike Dunleavy, provided with a slate of nominees for the Palmer Superior Court, has refused to name anyone to the open seat on the court. The governor’s reasoning appears to be that there were other qualified candidates who “inexplicably” (in his view) were not included among the nominating committee’s choices.
The governor has 45 days under state law to choose from among the candidates provided by the commission. Forty-five days have now passed, and no one is sure what will happen next. The state’s chief justice has defended the sanctity of the current nominating process.
The governor seems to be plainly in the wrong here. Merit selection systems deliberately divide the power of judicial appointments among multiple actors to reduce the risks of patronage and political partisanship. The governor does not appear to argue that the candidates provided by the commission were unacceptable, only that there are others he would prefer. That is not his prerogative. He should fill the seats with a qualified nominee provided by the commission, and give the state courts the judicial staffing they deserve.
Earlier this week, members of the West Virginia Supreme Court voted to support a state constitutional amendment that would confer greater legislative oversight of the court’s budget. The decision comes in the wake of a series of spending scandals that rocked the court and led to the impeachment trials of four of its members.
Amendment 2 would allow the legislature to reduce the Court’s budget by as much as 15 percent in a given year. It will go to the voters in November.
The amendment has been publicly supported by Justice Beth Walker, who was publicly reprimanded in lieu of impeachment earlier this month, and Chief Justice Margaret Workman, whose own impeachment trial was blocked this week by a specially seated Supreme Court on separation-of-powers grounds. The public support is a smart legitimacy-restoring move for both Walker and Workman, who have been accused of facilitating abuse the Court’s finances.
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).