In 1973, when the Minnesota Legislature set the mandatory retirement age for judges at 70, the average life span for men was 67.5, and for women it was 75. Today those projections have increased to 79.5 and 83.3, respectively, a substantial increase of 12 years for men and eight years for women. Many lower-court judges or Supreme Court justices in Minnesota have met that mandatory retirement age over the past several years (Associate Justices Paul Anderson and Alan Page among them) and have been forced to hang up their robes, at the prime of their judicial careers and at a time when Minnesota faces the loss of one-third of the judiciary within the next five years because of the mandatory retirement law.
It is within the power of the Legislature to increase the retirement age, and it should be a priority item on the 2018 agenda. Many states that had a similar retirement age have taken steps to increase it or have started discussions in that regard; Vermont is the only state with a fixed retirement age of 90, but other states have moved the bar to 75, which I submit is still low. Other states, such as New York, have provisions for a review of the “competency” of the sitting judge or justice every two years until they reach a specific age.
The U.S. Supreme Court has no mandatory retirement age — justices are appointed for life — and there are numerous examples of members of that court who have served well past what would be a mandatory retirement age in state courts. Of the present nine-member court, three are in their 80s and two others are approaching 70; Justice Antonin Scalia was 79 when he died in his sleep last year, and he was a very active leader of the conservative bloc of the court until his death. Indeed, John Beard, head of the World Health Organization’s Department of Ageing and Life Course, quoted in an article in Forbes magazine in 2015, said “ ‘Old’ has nothing to do with chronological age.”
There are certain occupations where the physical demands of the job are such that mandatory retirement ages are an important consideration: police officers, fire department officers, even air traffic controllers. But in the courts, history has taught us that many judges have their most productive years at age 70 and beyond.
A recent survey showed that 25 percent of doctors in this country are older than 65 and that many are still practicing until their 90s. On the other hand, legislators have no age restrictions as to how old they are when continuing in office. That is a choice for the voters, and their choice is often political-party affiliation as opposed to fitness.
We are living in a new time, where age is merely a number and is no indication of fitness. In fact, the world-renowned author John le Carré, at age 85, has just released his latest book, “A Legacy of Spies,” to marvelous critiques, with many reviewers saying it rivals anything he has previously written. It is well past time for the Legislature to review the judicial mandatory retirement statute — and to increase it.
Alan Miller, of Eagan, is an octogenarian and a retired educator with a background in law.