Why I’m voting against raising the retirement age for Pennsylvania judges

There are many good reason to oppose raising the judicial retirement age. From the Inquirer editorial urging citizens to "Vote 'no' on misleading ballot question raising judges' retirement age."

The affront to democracy that comes to voters in the form of a ballot question that would extend the retirement age for elderly Pennsylvania judges should be voted down to send a clear message to its partisan authors.

The integrity of the democratic process is threatened when voters are given misleading information. That this matter has been decided by judges who have a stake in it further taints their decision.

Also, see a very clear explanation of the judicial retirement age ballot question from my fellow ADA board member, Jim Moss posted here

The deceitful wording is not the only reason I oppose the ballot measure. From my article Why I’m voting against raising the retirement age for Pennsylvania judges"published in the Chestnut Hill Local in December 2015 in the wake of the porngate/hategate email scandals:

I never thought so many judges and prosecutors, including state Supreme Court justices, would routinely exchange vicious racist, misogynistic and homophobic emails. Yes, I know that many white men resent the gains that women and people of color have made in recent decades, but I never expected anything this ugly from those entrusted to administer justice. It’s even more of a shock that they felt safe doing this.

This scandal will no doubt lead some voters to reject the proposal on the 2016 primary ballot to raise the retirement age for judges from 70 to 75. I can certainly understand the desire to clean house.

But there’s another more urgent reason to reject this proposal. The cohort of judges now reaching 70 are much more likely to be white, male and heterosexual than the pool of potential judges, now in their 30’s and 40’s. (It’s only relatively recently that open LGBTQ candidates have run for and won judicial seats.)

If the retirement age is raised, there is real danger that we will delay the transformation of the judiciary into something more closely resembling what America now looks like. Maintaining the current retirement age is not a solution to the current lack of diversity on the Bench, but at least it doesn’t contribute to the problem.

A recent report from the Center for American Progress (CAP) documents the lack of judicial diversity: “In many states, the judges do not look like the defendants and plaintiffs who stand in front of them… that glaring lack of diversity calls into question the overall fairness of our justice system.”

The CAP report argues that if we are to have a diverse judiciary reflecting our increasingly diverse citizenry, we must reduce the influence of money in the judicial selection process. The report recommends reforms, such as public financing in states that continue to elect judges.

The report further argues that “merit selection (a system of appointing judges in which a commission chooses a list of potential nominees based on their qualifications) can be an effective tool for achieving diversity, when the process is structured to take diversity into account.” Although a 2009 American Judicature Society study found that states with merit selection had more diverse supreme courts, the CAP report cautions that some merit selection systems have not resulted in a diverse judiciary: “Even when diversity is mandated at certain points in the process, lawmakers in some states have ignored the mandate.”

It is unlikely that in Pennsylvania we will have public financing of judicial elections or merit selection anytime soon, so while we fight for substantive reform, let’s not exacerbate the problem by freezing in place the current judiciary by raising the retirement age.

I’ll grant that there are some fine 70-year old judges who could make a contribution for another five years and that mandatory retirement can be viewed as unfair to these individuals. Yes, maybe some of them, as Pennsylvanians for Modern Courts Program director Suzanne Almeida has argued, get better with age. According to Almeida, “Judging is one of those jobs that the longer you do it the better you get.” Well, maybe with some, but I doubt that judges like Supreme Court Justice Michael Eakin are getting better with each passing year.

We must base our decisions about mandatory retirement on what is good for society as a whole rather that what may be in the interest of a particular individual. Moreover, with the judiciary, mandatory retirement is not just about creating job opportunities for the young but about a justice system which reflects the diversity of citizenry. This matters.