My first job as a young attorney at the Center for Public Representation was as an advocate for the elderly. My youngest clients during those years were 60 years old and I represented many clients who were over 90. I learned a lot about aging and the wisdom that comes with it from many of my clients. In addition, these clients also taught me that age is not just a number. It is an attitude. I represented clients in their 60s who were suicidally depressed, as well as clients in their 90s who were vital and vigorous. During those years, a colleague gave me a wonderful book of photographs of senior athletes entitled, “Growing Old is Not for Sissies.”
Among the panoply of federal civil rights laws is the Age Discrimination in Employment Act (ADEA), which Congress passed in 1967, prohibiting setting arbitrary age limits regardless of potential and,
to promote employment of older persons based on their ability rather than age.
Due to states’ rights under our Constitution, the ADEA does not apply to state judges, and 31 states have mandatory retirement ages between 70-90 years old (with most set at 70 or 75), despite absolutely no evidence that these mandatory retirements improve our judiciary.
Wisconsin has a murky history on this issue. Wisconsin used to have a mandatory retirement age for judges and Supreme Court justices. From 1955 to 1978, judges and justices faced mandatory retirement at age 70. Since 1977, the Wisconsin Constitution has authorized the legislature to impose a maximum age of no less than 70, but the legislature has not done so, resulting in no retirement age in effect.
Now, a Wisconsin legislator, Rep. Dean Knudson (R-Hudson), wants to set a mandatory retirement age of 75 based on this nearly 40 year old stale authorization. His statement to the media mentioned nothing about how this might improve our system of justice. Chief Justice Shirley Abrahamson notes that,
To the extent that either enactment affects presently sitting judges and justices, it ignores and overturns the vote of the people. The people elected the members of the judiciary for a fixed term and a set office.
If this bill passes, it would require the immediate retirement of Chief Justice Abrahamson and Justice Patrick Crooks, followed by the retirement of Justice Roggensack in July of 2015, despite recently being re-elected to serve until 2023, who would then be followed by the retirement of Justice Prosser in 2017, despite being elected to a term that does not expire until 2021. While I have certainly been critical of the dysfunction of the current Wisconsin Supreme Court, arbitrary age based retirements of 4/7 of the court in the next 3 years, promises only to politicize the court further by accelerating high stakes campaigns for these coveted seats.
There are better ways to reform a highly politicized state judiciary, including independent merit selection, a form of which is in place in 21 states. Indeed, instituting mandatory retirement means more judicial campaigns, bringing more campaign cash into our judiciary, which has demonstrated skewed results from judges who are afraid of how their decisions will be portrayed by their opponents in campaign ads.
As our nation struggles to overcome pervasive racism, let’s not add ageism to further corrupt our judiciary.
For more information on how Jeff Spitzer-Resnick can help you accomplish effective, progressive systems contact him through his web site: Systems Change Consulting.