By Robert S. Smith
I am a 69-year-old judge of the Court of Appeals, and you probably won’t be shocked to learn that I am in favor of Proposal 6 on this November’s ballot, which would raise the mandatory retirement age for judges of my court and the New York Supreme Court. But though I couldn’t be more biased, I’m not wrong.
The current retirement age of 70 was set in 1869, when not many people lived that long. (Today, New York Supreme Court Justices can be certified to sit until age 76.) Life expectancy in 1869 was below 50. The case for a change is easy to make: 1869 was a long time ago and a typical 70-year-old, or 76-year-old, is a lot healthier now than then. Today most judges in their 70s can do as good a job as they ever did— maybe better, because judging is a job in which long experience counts.
Under the Constitution as it stands, this state is firing a lot of talented employees at the top of their form. Maybe the most obvious example is our legendary former chief judge, Judith Kaye: She was forced to retire five years ago, was promptly hired by a large law firm, and has been practicing law full time (very successfully) ever since. She would have happily continued to make much less money in her old job— but an age limit dating from 1869 wouldn’t let her.
Judges do, of course, eventually start to fade. I would worry about a system with a lot of judges in their 80s and 90s. (In fact, I do worry about the federal system, where judges have life tenure.) But New York will not have any 80-plus judges if Proposal 6 passes. The amendment sets an outside limit of 80 and, because of the expiration of terms and for other reasons, many judges will retire before that. I would hit mandatory retirement, as it happens, at 73.
I said I worry about the federal system. But today’s United States Supreme Court makes for an interesting example of how Proposal 6 might work—because at this moment there are no justices who are 81 or older. There are four over 70, three of whom are over 76. What would be bad if the age profile of the Court of Appeals looked like that? You may not love the present United States Supreme Court, or all its members. The oldest are Justices Ginsburg (80) and Scalia (77), and I bet many of you wish one of them had retired at 70 or 76—though you don’t agree on which one. But whatever their faults, can you say with a straight face that their age is the problem?
The main argument against Proposal 6 seems to be that it should cover more judges. I agree that it should, but that seems a strange reason to vote “No”—a classic case of making the perfect the enemy of the good. I’m no political savant, but I don’t see the Legislature saying to itself: “A narrow amendment failed, so let’s try a broader one.” If Proposal 6 goes down, the idea of changing the retirement age may be dead for decades. But if it passes, there will be a strong argument for another amendment to cover more judges and correct the inequity.
They tell me that City & State’s readers are highly sophisticated. I hope you’re sophisticated enough to find Proposal 6 on the ballot—it may even be on the back. Please ferret it out, and vote “Yes.”
Judge Robert S. Smith is an associate judge of the New York Court of Appeals.