Didora: New York shouldn't force judges to retire at 70

New Yorkers have an opportunity next month to end the early departure of dozens of well-qualified members of the state's judiciary.

On Election Day, New Yorkers should vote yes on Proposition Six, an amendment to the state constitution that would end an arcane practice by extending the mandatory retirement age from 70 to 80 for judges on the Court of Appeals. The measure also would allow many trial court judges to continue on the bench for up to five two-year terms after turning 70, provided they are physically able and mentally competent.

If passed, the amendment would greatly improve the speed and efficiency of the judiciary by keeping experienced jurists on the bench. Our state courts are stretched too thin, understaffed and overburdened by heavy caseloads. Proposition Six would provide the much-needed resources to ease the current case backlog.

A recent poll by Siena College Research Institute indicated that 71 percent of those surveyed oppose the amendment. Proponents of the mandatory retirement at age 70 often cite the diminished physical and mental capabilities that come with age. If diminished capacity at age 70 were a legitimate concern, one would expect elected officials to be subject to similar mandatory retirement. But no other state employee is subject to such a requirement.

The drafters of the state constitution assumed that only judges were no longer fit for service after 70. When the retirement provision was established in 1869, the average life expectancy was in the 40s. But people today live productive lives well into their 80s.

The federal court system, which has no mandatory retirement age, serves as a prime rebuttal to our state constitution's presumption of physical and mental incompetence.

Many U.S. Supreme Court justices have served with distinction well beyond age 70, including Oliver Wendell Holmes Jr. and  Louis Brandeis, as well as appeals court Judge Learned Hand. Four of the nine current Supreme Court justices -- Antonin Scalia, Anthony M. Kennedy, Ruth Bader Ginsburg and Stephen J. Breyer -- are at least 75 years old. Their decisions are required reading in laws schools throughout the country.

In contrast, over the last several years, New York has seen the forced retirement of well-regarded judges at the peaks of their careers. Then-Chief Judge Judith Kaye, the first woman to serve on the state Court of Appeals and nationally known for groundbreaking decisions and for reforms to the court system, was forced to retire in 2008. Three years later, Judge Carmen Beauchamp Ciparick also had to step down from the state's highest court. Since then, both have led successful careers in private practice.

Judicial service comes later in life for most lawyers who serve on the bench. After years of practicing law, these attorneys carry their experiences into the courtroom. Therefore, the proposed amendment strikes the correct balance by permitting judges to serve until 80 while ensuring that they are physically and mentally capable to discharge their duties.

Some opponents of Proposition Six have expressed concern that it would scuttle advancements in diversity on the bench because it would reduce the number of jurists elected each year. The concern is unfounded because, under the proposition, judges who remain on the bench beyond age 70 would not count against the maximum number of judges allowed per district.

Two prominent legal groups, the New York County Lawyers Association and the Academy of Trial Lawyers, are recommending passage of the amendment. New Yorkers should follow that recommendation and vote in favor of Proposition Six on Election Day.

Matthew F. Didora, a member of the Nassau County Bar Association, is a partner at the law firm Ruskin Moscou Faltischek P.C. in Uniondale.

CORRECTION: This op-ed has been updated to correct the court level on which Learned Hand served.