Congress, Constitutional Law, Courts

Posner: All Judges Should Be Required To Retire At 80

Judge Richard Posner may have just announced his own impending retirement from the United States Court of Appeals for the Seventh Circuit. Posner is arguing that federal judges should be subject to a mandatory retirement age of “probably 80.” The legendary jurist and writer is 78 years old.  The interview may also add fuel to calls for Supreme Court justices to accept retirement.  Ruth Bader Ginsburg is 84.  Anthony Kennedy is 80.  Stephen Breyer is 78.

As many on this blog know, I have long advocated the expansion of the Supreme Court rather than age-based limitation (here and here and here and here).  In the last couple of weeks, I have recently had the pleasure of speaking with both Justices Ginsburg and Breyer and saw no diminishment in their intellectual abilities. They remain sharp and insightful.  I have always viewed age as a blunt tool for such distinctions.

In fairness of Posner, I am sure that he would acknowledge that such rules are by their very nature generalizations.  However, there is often a value to adopting rule that largely hold true — like the fact that most of us slow down physically and mentally with age.  Since we cannot do jurist by jurist evaluations, it is sometimes needed to consider basic and mandatory rules.  Yet, with the advancement of medical science, I wonder if such rules are likely to become more problematic with time.

Clearly, Supreme Court justices fall into a different category from lower court judges.  There is no age limitation or mandatory retirement language in Article III — raising the question of the ability of Congress to impose a rule that would require a justice to leave the Court without a voluntary resignation or impeachment.  Posner would likely acknowledge that such a rule would be discretionary for justices.

The same problem could arise for other federal judges who are guaranteed life tenure so long as they serve “during good Behavior.”  Posner insists:

“I don’t think Article III’s reference to federal judges serving ‘during good Behaviour’ need be equated to life tenure. It may be read just to mean they can be fired at any age for bad performance. Thus interpreted, the Constitution (which is plastic) does not confer life tenure on federal judges.”

I am less inclined to treat the Constitution as “plastic” in its interpretation and view the addition of a mandatory requirement as more problematic.  Having said that, this is a general rule of application for judges and it is not directed at any individual judge or responsive to any given ruling.  There would be good faith arguments on both sides of such an argument, particularly for lower court judges.

What do you think?

64 thoughts on “Posner: All Judges Should Be Required To Retire At 80”

  1. If some of them don’t have the good sense to retire, I can only hope the Good Lord will intervene.

  3. Three ways. Amend The Constitution stating no older than 80. Impeachment, trial and conviction, and Voluntarily.

    If the amendment route is chosen it can be stretched to other requirements such as gender, citizenship and age. or must have a law degree.

    At Present the ‘for life’ rule applies and there are only two requirements.

    1. Nomination by The President

    2. Confirmation by The Senate.

    End of story. except there is no time limit on confirmation and there is no requirements for some sort of interview . Not being called to interview and the nomination set aside means it is rejected.

      1. Gender is the proper word to use instead of sex. Male Female and both are the two most common and one least common found in some life forms mostly plant or vegetable kingdom but also in the animal kingdom..

        For the rest of it refer to a PC Fictionary.

        Note: As for as the first base definition are concerned some forms have both genders at the same time some operating in unison and some switch from one to the other.

        the others are problems for the non sciences of psychology and sociology. and political as I said non science. which is where we easily derive ‘nonsense or no sense.’ . Psychiatry however is one of the medical sciences..

      2. Yes, he’s thinking that only one gender should be eligible. If that’s the case it shukd be female. We tried it the other way for nearly two centuries and look how that turned out.

        1. I don’t feel sorry for your illiteracy tha’s your problem. Gender is gender neutral. It shukd did you mean should be female? Why. and where in the entire comment did I support one gender over another.? The anwer to your last question is ‘about even’ and since your being sexist I shall reply in kind. One side gave us LBJ and the other gave us Benita Pelosillyni and as my favorite Tucson homey singer put it they are credits to their gender. They really worked us over good just like a Warren Blender.

          1. You said gender should be considered a qualifying factor. What, pray tell, did you mean by that?

  4. My Ama was sharp as a tack at 93. Age cannot be the measure of competency. By the same token, we shouldn’t allow judges to serve past a point of reason. The judiciary arm of our government should determine what merits the point of reason.

          1. Has nothing to do with an maximum age for a Supreme Court Justice. Has nothing to do with qualifications. The candidate could be a 12 or 13 year old from Niue or Karamati. Same for religion.

            1. But it does have something to do with an over the hill female sexist and victimizer. .

            2. I never heard that. I’m not Jewish myself. I was going by a friend whose daughter had her Bat Mitzvah when she turned 13. Everyone seemed to think that was the time to have it. No one said otherwise.

    2. Should surprise anyone. Granny lost it eons ago. Retirement should be age 70 not 80. These judges are around too long as it is now.

      1. https://en.wikipedia.org/wiki/List_of_Justices_of_the_Supreme_Court_of_the_United_States

        Gives a brief chart view of statistics on years served , method of leaving, and age.

        As I pointed out there are three ways to leave and assassination would be a fourth.

        Resign voluntarily
        Impeached, tried and convicted (one was impeached but none convicted)
        Assasination None
        Died while in office.

        The requirements or qualifications remain just two.

        Nomination

        Confirmation.

        Amendments

        Article III – The United States Constitution – National Constitution Center
        https://constitutioncenter.org/interactive-constitution/articles/article-iii
        A portion of Article III, Section 2, was changed by the 11th Amendment … Equity, arising under this Constitution, the Laws of the United States, and Treaties made …

        Any other changes came under acts of Congress. An example is the Act of Succession

        Can an Associate Justice such as Neal Gorsuch be elevated to replace the Chief Justice. Yes it’s quite common. and assuming McConnel and the RINO’s don’t split the party quite likely to happen.

    3. If the yes are the window of the soul we need to look into those eyes in person not in an unflattering photo. Judge Ginsberg NEVER advocated that the age of consent should be 23 years of age…ABSURD, do some personal research do not rely on this biased nonsense

        1. the age she supposedly used was 12. She also thought Bigamy, polygamy etc should be legal.

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