Is age 70 too old to judge, case closed?

golden balanceBy Steve Brawner
© 2016 by Steve Brawner Communications, Inc.

Is a 69-year-old perfectly acceptable to serve as a judge, but a 70-year-old too old? That’s sort of how the state of Arkansas looks at it.

Under a law passed in 1965, judges who reach age 70 would lose their retirement benefits permanently if they are re-elected, though their paycheck contributions through the years would be returned to them. Not surprisingly, no Arkansas judge has ever given up those benefits to keep serving.

Several judges who are about that age recently sued, saying the law effectively adds an age requirement to the Arkansas Constitution.

They lost. In a 5-2 decision, the Arkansas Supreme Court ruled June 23 that an age limit for receiving retirement benefits is not the same as an age limit for serving. “If it is possible to construe a statute as constitutional, we must do so,” wrote Justice Courtney Goodson in her majority opinion.

Thirty-three states have upper age limits for judges, but Arkansas is the only state that uses retirement benefits to encourage judges to retire. We’re not going to make them leave, but we will grab their cane and use it to nudge them toward the door. In her concurring opinion, Justice Karen Baker wrote that most of the recent efforts to change or repeal those laws across the country have failed. The Arkansas Legislature rejected an attempt to increase the age to 72 in 2015 and has rejected other efforts to change the law in the past. Legal challenges also have failed. The U.S. Supreme Court – which currently has three members above age 70 – has ruled age requirements to be constitutional.

The Arkansas Supreme Court justices who are nowhere near 70 all voted to uphold the law. Two of the older justices split, with Justice Jo Hart voting with the majority and Chief Justice Howard Brill dissenting.

And the one justice who has reached age 70, Justice Paul Danielson, really let ‘em have it in his dissent. He wrote that the Legislature is trying to indirectly accomplish what it can’t accomplish directly, and that what the law actually says is, “leave or we’ll steal your wallet.” And then he got even more personal, writing, “The General Assembly may consider me aged and possibly even senile, but I can still spot a constitutional violation when I see one.”

Some facts are noteworthy here. One is that legislators and members of the executive branch are not required to retire by a certain age to receive benefits. Also, this is not a term limits measure. You can serve 40 years, and as long as you quit at 70, you still receive a pension.

Finally, it’s worth pointing out that lawmakers are members of political parties whose presidential candidates would be considered too old or almost too old for the Arkansas Supreme Court. Donald Trump is 70. Hillary Clinton will be 69 by the time the election occurs in November. So 70 is too old to sit in a chair and judge cases, but not too old to fly around the world on Air Force One.

What bothers me most about this law – and it bothers me more now that I’m 47 than it would have when I was 37 – is how arbitrary it is. The age limit is sort of picked out of a hat. At a time when society is contorting itself not to discriminate against some individuals, Arkansas is saying that 70-year-olds in general probably can’t make wise decisions any more. That’s unfair and dumb. There are many 70-year-olds who are in excellent physical shape and who haven’t lost a step mentally. Arkansas is discouraging from service the very people who have the most experience with the law.

This society is rapidly aging, and it will have to question some of its assumptions about what a senior citizen can do. Otherwise, we’ll carry on our backs people who are still capable of shouldering their share of the load. Certainly, some 70-year-olds should not be judges – but neither should many 50-year-olds. As in a court of law, it should be decided on a case-by-case basis.

Related: Why Supreme Court races matter: Lake View

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