Old People, State Judges

Age Discrimination v. Generational Divide

How you come down on a case of alleged “age discrimination” probably depends on whether you view the issue as age discrimination in the first place, or if you see it more like trying to pry control of the country from the cold dead hands of the Baby Boomers.

This issue came to a head on Capitol Hill yesterday when Luke Russert “irritated” Nancy Pelosi by asking if her decision to stay on as Minority Leader “prohibits the party from having a younger leadership.” Pelosi snapped at him as if the question was inappropriate and ageist. And it probably was. But at the same time, the three top ranking House Democrats are 72, 73, and 72… which is freaking ancient. And their presence is clearly choking off opportunities for younger people with newer ideas.

The issue is also coming up in Pennsylvania where six old-ass judges are suing to overturn a state law that requires them to retire by the age of 70….

Look, it’s bad when old people have to keep working into their late 60s and 70s just to pay their bills. That’s heartbreaking. That’s why we invented Social Security and why raising the retirement age on old people with hard jobs is kind of cruel.

But when old people with office jobs and full pensions want to keep working just because they’re afraid they’ll die when they have nothing left to do, that’s a different kind of problem. When we’re talking about old people who think their judgment to be so indispensable or important that they can’t gracefully exit the public sphere, that’s a different kind of problem. And when we’re talking about old people who might be past their intellectual prime while they sit in judgment of others, it’s a very serious problem for everybody who can still chew the leather.

The Baby Boomers, with their massive generational numbers and access to better health care than any group of old people in the history of the planet, present a real challenge for the young people eager to replace them. They’re not dying anytime soon, they don’t want to leave their jobs, and the fact that they don’t really understand how the intertubes work or what all this tweety bird fuss is about doesn’t seem like a problem to them.

The judges are challenging a 1990 Supreme Court decision, Gregory v. Ashcroft, which upheld mandatory retirement ages. From the WSJ Law Blog:

The lawsuit, filed Wednesday in the Commonwealth Court of Pennsylvania, cites new evidence that the prevalence of cognitive impairment in older Americans has decreased, even since the early 1990s…

“To be a good judge requires good judgment, and judgment is a function of, inter alia, age and experience. Judicial performance thus frequently peaks late in life,” the complaint says…

“What we expect what will happen is that new facts, changing times and evolving law will permit us to come to a successful conclusion in this case,” said Robert C. Heim of Dechert LLP, who is representing the judges.

See what I mean? Note how easily these judges equate “age” with “experience,” yet how quickly they gloss over “cognitive impairment.” It’s like if your dog argued that the many meals he had eaten made him an excellent food critic notwithstanding the fact that occasionally he licks his own ass.

Look, I’m sure these judges have something left to contribute, and I agree that 70 is a kind of arbitrary date to declare somebody “too old.” But there are young judges with something to contribute as well. There are judges with new ideas and a firm grasp on the times we’re living in who can’t even get on the bench because these guys are gumming up the works. Time waits for no man, and at some point, people need to move on to that great, big Florida in the sky and allow the next generation to rise up.

While 70 might not be the year that a judge’s brain turns to mush, surely 70 is still a relevant point where, most likely:

  • You have still never driven past an “App store,” though you keep looking for one.
  • Every time you hear “algorithm,” you think “robots.”
  • Somebody tries to explain ripping something off of a DVR to put on YouTube with analogies to Xeroxing books for coursepacks.

Basically, even if the cognitive abilities are there, 70 is as good an age as any to say that a judge might be too stuck in the past to make rules about our future. That’s a generational issue, it’s about whether people on their way out should be making rules that apply to people on their way up.

It’s also, most likely, ageist. For every 10 judges that hit 70 still wondering why they took Murder She Wrote off the air, there’s one who is coding the next lawopedia app. Where you come down on this issue probably has a lot to do with how old you are.

Pennsylvania Judges Sue over Mandatory Retirement Provision [WSJ Law Blog]
Six Pennsylvania Judges Challenge Constitutionality of Mandated Retirement at Age 70 [ABA Journal]

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