by Karen Bojar

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 bill. 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.

So yes, maybe mandatory retirement is unfair to some deserving individuals, but if the issue is viewed in terms of what is good for society, mandatory retirement has clear benefits. The baby boom generation is the first generation to really push back on mandatory retirement and it’s having an impact on job opportunities for the young – certainly so with professional jobs. There is some evidence that when mandatory retirement for well-paying professional jobs is eliminated, retirements fall sharply.

The reluctance to retire on the part of many university professors has had unfortunate consequences for a generation of younger scholars. From a recent article in the Chronicle of Higher Educatio, “The Forever Professors”:

“American academe has created a continuing disaster by resting faculty retirement solely on the cornerstones of senior professors’ self-interest and self-assessment. Unless higher education comes up with a mechanism _or social consensus – that makes retiring by 70 the honorable and decent thing to do, everyone’s individual “right to work” past 70 will crush the young.”

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.

Karen Bojar is a Mt Airy resident and a longtime committee person in the 9th Ward Democratic Committee’s 2nd Division.

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