Should there be a mandatory retirement age for elected officials?Play
Sign up for the On Point newsletter here.
Should there be a mandatory retirement age for elected officials?
Almost 75% of Americans say yes. This isn't an impossible dream. Age caps are common in one branch of government — they already exist in the judiciaries in more than 30 states.
“The age limits are a piece in the toolkit needed to keep the courts up to date," Mark Tushnet says.
Today, On Point: Do mandatory retirement ages work in state courts? And if they do, why not in other branches, too?
Mark Tushnet, professor emeritus at Harvard Law School.
Bentley MacLeod, professor of economics and public affairs at Princeton University. Co-author of a study titled “Mandatory Retirement for Judges Improved the Performance of U.S. State Supreme Courts."
Hon. Shira Scheindlin, former judge of the United States District Court for the Southern District of New York.
Hon. Marilyn Kelly, former chief justice of the Michigan Supreme Court.
On criteria for how long a judge can effectively serve on the bench
Hon. Shira Scheindlin: "If I were inventing the system, I would try to get feedback from a lot of lawyers who appeared before that judge. A real cross-section, not just those who won or lost a particular case, but a large, large group. And if that feedback came back very positive, then, like I mentioned in the certification system in New York, I would say that person is still functioning at full capacity. If she wants to stay, I think she should. But if that feedback came back quite mixed or tending toward negative, then I think not.
"And so I wish we had some kind of a system that could evaluate even the life tenured judges, because there's no way that we have to stop them from continuing to serve if they want to continue. Now, one thing I will say in the federal system with life tenure, we have something called senior status. And that's a great concept that at a certain point you're allowed to take a special status. You're still a judge, you're still active, but you don't have to take a full load anymore.
"And you create a vacancy for a new judge to be added to the court. So that's a very nice compromise. And I must say that I wish the United States Supreme Court had that. I wish at a certain point that older judges would take senior status and a new justice could be added to the court. But we don't have that now, as you know."
On a mandatory retirement age
Mark Tushnet: "The way I think about it is to think of the judges as a whole, as a sort of team doing a job for the people of the state. And what you want is I think the idea is a sort of toolkit of things to do that will allow that team as a whole to be as productive as possible. And one of the things you want on a team is, as Judge Scheindlin indicated ... you want experienced people who know a lot about the law and the system, but you also want younger people who are more in tune with the kinds of social changes that have occurred in this country with some rapidity.
"For example, my current example is that we want judges who actually have some sense of what this new social media are like, what it means to post something on TikTok or Instagram so that they can think well about what kinds of regulations make sense, are consistent with our traditions and so on. And you can't evaluate those things. You can't apply the law unless you have a good sense of what the thing is that you're dealing with."
On how to assess a proper retirement age
Hon. Shira Scheindlin: "So maybe I would favor a presumptive age. In other words, it would be a presumption that could be rebutted, added that the judges would have to retire at age 75. Because I think 75 has become the new 70, so to speak. So I think that age should be advanced, but there may be a presumption that could be rebutted, which means that if a judge wanted to continue after that age and would be willing to be reviewed by colleagues, by lawyers, by I don't know who else, administrators, and assessed as to their ability to do it.
"And if they sort of pass that assessment, then they could stay for another two years and be assessed again. I sort of like that notion. Instead of a strict mandatory age, which would remove some very high functioning, effective judges or could give another 15 years. I mean, the most famous example in my part of the world was Judge Jack Weinstein, a very famous judge who sat until he was 99 and very effectively never lost a beat mentally, never. So that was an unusual story, but a great story because he was a great judge. And all the work he did in those 20 years was wonderful. So if he'd had to leave at 79, we would have lost a great, great judge. So it would be individual. I like the idea of creating a presumption."
When you compared the courts that had mandatory retirement ages versus those that did not, did you find a difference in performance as you had defined it earlier?
Bentley MacLeod: "Basically the way to figure out how mandatory retirement is going to work is actually to look at what happens in practice. And when we do this, this is sort of called a natural experiment. When the state changes the mandatory retirement rule, we see how the effect works out, with all those individuals, some individuals it helps. Some individuals are unfairly removed from the court. And what we found on average is that the number of the impact of their work goes up by approximately 30% in positive citations and about 20% in out-of-state citations.
"So this is measuring the impact of how this younger court is affecting the law. Secondly, we find that there's about a 10% increase in output. And the other thing you might ask is assumptions, rules that can help deal with this, like, for example, reallocating cases. And the interesting thing is we find that in states where we do not use random assignment of cases, that is to say the chief justice choose which judges to look at the case. The effect, the positive effect is actually smaller. So in a sense, there is some evidence that today that some of the chief justice can mitigate some of the problems that occur with underperforming judges."
The power of incumbency in American elections
Mark Tushnet: "If you impose an age limit, then you automatically lose the benefits of incumbency, which are real benefits. The other thing I wanted to mention is that I think it was James Madison said there was a competing consideration, particularly with respect to legislators and executives, which is he referred to the right of the people to choose whom to govern them. If you impose a mandatory age limit, you're saying you can't choose this person no matter how good you think he or she would be.
"And that's, you know, normatively problematic in a democracy. We have elections for judges. They're controversial partly because we don't quite think of judges as governing us in exactly the same way that legislators do. But again, that's part of the toolkit of trying to keep the judiciary as a whole responsible to the people. Elections, mandatory retirement ages. These are things that you can deploy if you want."
This program aired on April 27, 2023.