Judge Richard Posner (screenshot via Big Think / YouTube)
Los Angeles is the home of the La Brea tar pits. For those of you who’ve never visited here, let alone hung out at the tar pits, they contain fossils of prehistoric creatures, including wolves, saber-toothed cats, and coyotes.
Some think that judges of a certain age and older are fossils, dinosaurs, or whatever, and need to leave the bench where they have served for years. Perhaps these judicial dinosaurs even wind up in judicial tar pits. I don’t want to hazard a guess as to what those might look like. Full disclosure: there are no dinosaurs at the La Brea tar pits.
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Judge Richard Posner thinks that judges who reach a certain age should be booted from the bench. Here’s a 7th Circuit judge who advocates for age discrimination and mandatory retirement for federal judges at eighty. At least, he’s walked the talk, having left the bench earlier this month at seventy-eight.
I’ve been advocating that dinosaur lawyers still have much to give to the profession, and Judge Posner essentially says “Not so fast, ” at least as to his former judicial colleagues.
Judges were lawyers once (although Judge Posner has a theory about that as well) and so what Judge Posner is saying, albeit indirectly, is that once a lawyer reaches a certain age, that lawyer no longer has any value and should be consigned to the scrap heap; let’s make that tar pits here in SoCal.
What a discouraging thought, that just by definition of age, one is no longer qualified to be a judge. Age is no longer just a number; it is THE number, and once you cross that threshold, the only way is down the chute, although some people don’t look their age.
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So, will there be judicial age police who will patrol the courthouses in this country (somewhat akin to ICE looking for “deportables” there?) If someone looks X age or older (substitute a number for that X), is that person is done for, off with their heads, metaphorically speaking or maybe not? If someone doesn’t look his or her age, due to plastic surgery, Botox, hair coloring, or good genes, will that person be allowed to continue until outed? What if an older judge is in excellent health and a younger colleague is not?
There are some people who are morons on the bench at forty, and there are some people who are still going strong, physically and intellectually at 80 or older. Should the latter automatically be consigned to retirement?
I don’t think I need to explain the rationale for enactment of the Age Discrimination in Employment Act. Far too many people were involuntarily whacked just because they had reached the age of 65. Before enactment in 1967, many people who turned 65 were deemed to have one foot in the grave because life longevity was not then what it is now. Initially, the ADEA only protected individuals between 40 and 70; but in 1986, realizing that one could fit for duty after 70, the upper age limit bit the dust.
Maybe for judges, a mandatory retirement age may make sense, especially given that the judges have old-fashioned retirement plans.
How many dinosaur lawyers have them at all, or in amounts sufficient for comfortable retirements (notice that I didn’t say “luxurious,” I said “comfortable?”) I would guess that not all that many.
Some lawyers put off “retirement,” or whatever that term means these days, because they want to work, some because they must. A mandatory retirement program can hurt firms when rainmakers who must leave because of mandatory retirement ages take their big books of business elsewhere to salivating firms that welcome them with open arms. Leave that book of business behind? Not so fast.
An unwarranted assumption is that most, if not all, lawyers can’t wait to retire, but that’s not necessarily the case. If you like, or even love, what you do, if you care about your clients, if you want to continue to make a difference not only in your clients’ lives, your life, and the larger world, then why voluntarily relinquish that because of some arbitrary number that says that you have no value anymore?
I think that same holds true for judges. If they like, or even love what they do, care about making a difference in the administration of justice, why should age determine who stays and who has to go? However, after writing more than 3300 opinions, Judge Posner decided that he stayed long enough. That’s his decision to retire at 78. It shouldn’t be forced on anyone else.
How is “old age” defined? No surprise that different age groups define it differently. Dinosaurs, take heart, as a study mentioned in the article concluded that “old age” is reserved for those ages between 75 and 89. We’re not dead yet.
The late poet and author Richard Armour said that “retired is twice being tired, I thought, first tired of working and then tired of not.”
The issue is how do you know when it’s time to retire? There is no “black letter” definition of when it’s time to go. That number is different for everyone, and some get when it’s time to retire, others don’t, needing a tap on the shoulder or a shove (maybe gentle, maybe not.)
We’ve all had guests that have overstayed their welcome (the very funny Kaufman and Hart play and movie entitled The Man Who Came To Dinner comes to mind. ) We’ve all also had the ticklish issue of how to tell invited dinner party guests that it’s time to go. Some hosts start yawning, some do the dishes, vacuum, even straighten up the house in the hopes that the guests will take the hint. Some guests are smart enough to take the hint. Others aren’t. Judge and lawyers are no different.
Jill Switzer has been an active member of the State Bar of California for 40 years. She remembers practicing law in a kinder, gentler time. She’s had a diverse legal career, including stints as a deputy district attorney, a solo practice, and several senior in-house gigs. She now mediates full-time, which gives her the opportunity to see dinosaurs, millennials, and those in-between interact — it’s not always civil. You can reach her by email at [email protected].