Judge Jonathan Lippman shown during a swearing-in ceremony at the...

Judge Jonathan Lippman shown during a swearing-in ceremony at the New York State Court of Appeals in Albany, N.Y. (Feb. 25, 2009) Credit: AP

Real issues, wrong solutions. That's the story of the referendum asking voters to raise the retirement age to 80 for judges on the state's top court and its major trial courts.

Mandatory retirement is age discrimination. And there may be a genuine need for additional judgeships to keep pace with the court's swollen caseloads. But the constitutional amendment voters are being asked to approve Tuesday isn't the answer to the state's needs.

The New York constitution currently requires judges on our highest court, the Court of Appeals, to retire at age 70. Meanwhile, lower judges on some trial courts, can remain on the bench until age 76, but to continue past 70, their judicial performance and mental and physical fitness must be certified every two years. If voters approve Proposal No. 6, those Supreme Court judges would be allowed to serve up to two additional two-year terms, until age 80. Court of Appeals judges would be allowed to serve out the 14-year term that began before they turned 70, or until the end of the year in which they turn 80.

New York's chief judge, Jonathan Lippman, said the proposal would end "a constitutional presumption of senility at age 70," and allow older judges to stay on the job to help handle the workload. But nothing in the proposal would actually end age discrimination. Raising the bar from to 80 would merely delay the onset of that indefensible prejudice.

Judges shouldn't be forced to retire at any preordained age, although they could be limited to a certain number of terms. New York however, has never had the required public hearing on whether we want judges to serve for life and, if so, how we would measure their effectiveness. These are fundamental questions that bedeviled our Founding Fathers. In this state, we have not yet had that discussion.

When the age limit for New York's judges was imposed 144 years ago, very few people lived to become septuagenarians. The age limit is an anachronism. If it was ever justified, it certainly isn't today. But ending that is not what this proposal would do.

The secondary argument -- that the age change would make about two dozen additional Supreme Court judges available over the next four years to meet an acute need in family courts -- falls flat. There's no certainty that any judges would be reassigned to the lower court.

The State Legislature should document the extent of the court logjam, especially in the family courts, and determine how many additional judgeships are needed to relieve it and approve the slots. The governor should include the necessary funding in his budget. There are more precise and more effective ways to address age discrimination and staffing concerns in the courts than those on the ballot Tuesday.

Vote no on Proposal No. 6.

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