Mandatory retirement… an age-old, or just an old-age problem?

GUEST: Mark Zauderer
AIR DATE: 2/22/2014
VTR: 12/12/13

I’m Richard Heffner, your host on The Open Mind, which I began way back in 1956, when still a young man … a statistic that may make it somewhat unseemly that today, nearly sixty years later, though quite so long in the tooth myself, I insist on discussing the folly of rigid mandatory retirement requirements set generations and generations ago when average life expectancy was so much shorter than it is today.

Specifically, I’d like to discuss such retirement requirements as imposed upon the judiciary, where surely skilled and experienced judges are so much needed.

And my guest, appropriately enough, is once again my distinguished attorney friend Mark Zauderer, who a few years back, when he was President of the Federal Bar Council here in New York, joined me then on Open Mind as Chair of the State Bar Association’s Special Committee on Age Discrimination in the Legal Profession.

At the time, we talked about my guest’s Bar Committee’s having urged private law firms “Not to Force Retirements”, as a New York Times headline read.

Now, I gather, Mark Zauderer has fought – however unsuccessfully – for New York State’s recent effort at the ballot box to ease age restrictions on judicial service. And I would ask him why?: why he fought and why he lost. Mark?

ZAUDERER: Well, I think trial lawyers always like to win … not lose, but they’re always, always willing to fight for something that they think is important.

I think to put some perspective on, on the topic again for some who may not have thought about it.

There are some major trends in society that make this an important issue. For one thing the Baby Boom generation in great numbers is hitting what is thought of as the traditional retirement age.

So we have an enormous explosion of the population in that age group. And the other factor, of which we’re all aware … is that we’re simply living longer, healthier lives.

The age retirement for judges in New York, for example, was set in the mid-nineteenth century when age 70, which is the nominal retirement for judges in New York was an age to which many people didn’t live. Most people didn’t live. It was a very academic notion.

And what we have today, of course, is which was true with lawyers, is we have large numbers of people entering that age segment who are willing to work, who … in many cases … need to work because of the expected lengthy lifetime … but I think in the case of judges, what’s particularly important, not only for their personal reasons, they ought to be allowed to work, but for the reasons that society benefits enormously from the contributions that come along with age, wisdom, experience that people can, can make and particularly judges.

And we’ve had in New York and I’m sure it’s true elsewhere numerous instances where distinguished judges have been forced to retire from New York’s high court at age 70, unlike the lower courts … that’s it … you can’t get extended.

In the lower courts when you reach age 70 as a judge, subject to good health and vigor, your term can be extended for up to three two year terms to a maximum of 76.

But we know from experience, not only in our own system, but in the US Supreme Court, for example, we’ve had distinguished jurists serving … not only into their seventies, but eighties, nineties and, and in one case in the Federal judiciary, someone beyond that.

But on the Supreme Court we have today people who would, in New York and many states … not all … would be mandatorially retired and the society would not be able to benefit from their long experience and, in fact, wisdom.

HEFFNER: It’s interesting to me, Mark, that somewhere along the lines of a, a the materials to study for this … one finds reference to the notion that many state judges did not take up their participation on the bench until after a rather successful career in the legal profession.

So that they, indeed, need that time to make their greatest contributions and they cut off too quickly.

ZAUDERER: Well, that’s an excellent point. It’s something we all intuitively understand … that many judges … and something we expect will become judges only after they’ve had that experience. Why is that?

Because we want those who sit in judgment in very important matters of, of life to have had that kind of experience.

You know, this is not necessarily true in other professions. There are other, extremely capable, successful people in the financial world, for example, on Wall Street who retire at age 40 or 45 … and, and think … apart from the fact that they may be able financially to do so, they’ve achieved their peak, so to speak earlier.

In the legal world, which involves not only knowledge, but the responsibility of making important judgments in grey areas where people’s lives and fortunes are at stake … we value as a society the maturity, the ability to make judgments that can only be made with significant experience.

HEFFNER: Well, last month in fact … we’re taping this program in December, 2013, but in election day last month, here in New York State, the voters rejected a Constitutional amendment that would have enabled judges to serve longer. Why do you think that was true?

ZAUDERER: I think there was a confluence of factors. And one thing as our, our Governor pointed out, I think correctly …the Bill was … as a compromise … was, was somewhat flawed. It was imperfect because it created extended tenure only for certain judges and not others.

So there was confusion over that, and some of the opposition understandably pointed that out. But I think as an overarching point there’s a, a, a general reluctance among the population to extend the terms of elected or appointed people.

Hence the controversy over terms limits. I think that played a role. In addition, I think the fact that the economy is still not in great shape and many people are disaffected.

I think when one reads a description of the Bill, which is all many voters would actually see, they’re not … they don’t have the opportunity to study the background of it … that when they see that they’re in effect extending tenure to people, when either they or people in their families, you know, are themselves, without jobs, is not something that’s likely to, you know, inspire good feeling in the voter.

Finally, and this, of course, is just speculation … I think notwithstanding their good works, there are many people that just gratuitously would not want to feel a debt of gratitude toward judges in our society.

So, that’s my speculation that all of these factors combined to make it such that the, the proposition did not pass.

HEFFNER: Was there any research done on the voters coming out of the ballot … ah … place.

ZAUDERER: I haven’t seen that research. And I would also say that to the extent that one would want to understand that … to renew this effort, there may be an uphill fight, particularly in the political world. Because, remember for this proposition to have been on the ballot, it had to have been passed by the Legislature more than once.

HEFFNER: What’s your prediction …

ZAUDERER: So …

HEFFNER: … will it be back?

ZAUDERER: … well, if you were a politician today and you saw that it was the only amendment that did not pass … the proposition did not pass … you might hesitate to be in vanguard of those promoting it.

But, I’m … I have a … some optimism about it. I think that as one of the things that perhaps was not done successfully was for those who were backing this amendment to educate the public about the value of it.

I’ll give you an example. I heard somebody comment when this debate was going on … “Well, we have to make room for newer, younger judges.”

Well the fact is by having extended retirement age, you have more judges in the system because in New York, when a judge reaches the retirement age of 70, that position opens up and is filled so you, in effect, have a supernumerary … you have an extra judge. And boy we need all the judge time we can get in our system.

We have our, our Criminal courts, our Family courts, our courts that handle civil cases for ordinary people. They’re having difficulty particularly in a time of budget constraints, keeping up with the cases.

So any proposition that allows there to be more judges hearing more cases, has to be thought of as healthy feature.

HEFFNER: Let me just switch a bit from the matter of extending the tenure of judges, in terms at least of their age, to the selection of judges.

This battle over whether judges should be elected or selected … has been going on for some time. What’s your fix on this?

ZAUDERER: Yes. Well, “for some time” is really right on point. In fact, our system which was inherited from the British reflected appointments, by the Crown … initially and later by the Legislature or our Governor’s appointment of judicial officials.

And what happened, really, in the middle of the nineteenth century throughout the United States, in part reflecting the Jeffersonian and then the Jacksonian tradition of putting confidence or faith in the people … many states switched to elective systems.

The problem with elective systems, while superficially appealing because it seems consistent with the notion that in a democracy the people picked their public officials … but it’s, it’s beset with problems.

For one thing, the public in voting for judges really does not have the, the tools to judge. Who has the tools to judge whether somebody should be a judge? The competing system which you alluded to, which has gained favor throughout the United States in many states … some in the High Court, some in the lower court … some in both levels of courts … is an appointive system.

Well, the argument is made that in an appointive system, you just switch the politics from the voters to someone else … whoever the appointers are.

But in practice some of these systems are, are really quite ingenious … you have screening bodies such as we, we have for the High Court of New York and some courts … some states do it for other courts … where the bodies themselves are selected at different times by different Governors or different people so you have a diversity on the group that’s making the recommendations. But perhaps …

HEFFNER: You mean a committee …

ZAUDERER: … a committee that recommends … in some cases, for example in New York’s High Court there’s a Commission which has appointees from different political figures over time … they will recommend between four and seven people for the New York Court of Appeals and the Governor must then select from one of those people who are proposed or nominated.

And all these committees in whatever form they’re set up, have the resources to make these judgments because they have the applicants submit extensive questionnaires, answers to questions, their writings … extensive polling is done of lawyers or judges who have worked with the judge-candidates in their professor as lawyers in the courtroom or whatever their, their field of endeavor is.

And for sitting judges they’re reviewed for, for re-appointment … their, their decisions are studied. So these bodies are really in a position, unlike the electorate to make informed choices.

But I think probably the strongest argument for the elective or rather the appointive system … rather than the elective system … ah … is that a judge unlike another kind of public official is not supposed to be playing to a particular crowd … is not supposed to be making promises the way a politician legitimately can.

I mean somebody comes and runs for public office and says, “Look, if you elect me I’m going to do A, B, C or D and you can hold me to it”. A judge cannot and should not do that. We don’t want that of our judges. We want our judges to be judges. And not simply carrying out a particular agenda.

And the system is further complicated by the fact that not only can’t judges speak to a particular platform … therefore the voters have no basis of judging … based on that … but now, and particularly with the Supreme Court giving free license to political contributions by corporations, we have, throughout the United States … a view of many … an unhealthy situation where heavy contributions to judges’ races are affecting both openly and subliminally … the results that judges reach in cases.

Particularly on the High Appellate Courts. You know originally there was much written in the press that trial lawyers, representing personal injury plaintiffs or class action plaintiff played a disproportionate role in the selection of the judiciary because they made heavy political contributions.

But ever since the Supreme Court’s decision in the Citizens United case which basically has blessed corporate contributions …other segments of the community have contributed very heavily to elections of judges, particularly the business community.

Now whether that’s balanced … what has been said … the plaintiffs … or whether it’s … whether the scale is tipped too far that way, who knows. But in either case, do we want a system in which political contributions can influence the decisions, the very important decisions that our High Courts make on basic issues of policy.

HEFFNER: I gather in reading many stories in the last couple of years … many items in the press … that just this thing has happened … at least accusations have been made that judges on the High Court of a state have ruled in favor of people who have made substantial contributions to them. Or to people related to corporations that have made substantial contributions to them.

ZAUDERER: There certainly has been a lot in the press about that. And there have been some instances where some judges have either been removed or have resigned from office because of disclosure of relationships that apparently have affected the decisions. Fortunately, they’re rare, but they have occurred.

HEFFNER: Mark, you’re still a youngish man … have you noticed in the course of your legal career any shift or changes in the quality of judges?

ZAUDERER: Well, let me premise what I say to start with what the notion that by and large … both then and now … judges are good.

They have a very difficult job to do … under very difficult circumstances often with limited resources.

But I have noticed a shift which I and others, I think, have found somewhat disturbing.

One is that with the disparity of income that’s grown between private practitioners and judges …

HEFFNER: MmmmHmm.

ZAUDERER: … the pool from which judges are chosen has, has somewhat shrunk. Ahh …

HEFFNER: You mean in a, in a sense because they’re paid so little.

ZAUDERER: Because they’re paid so little. Ahemm … I think I … when I was a law clerk to a Federal judge … I think I made $10,000 a year and the Federal judge made $40,000 a year. So the judge made four times as much as the starting lawyer. Today, you’ve got lawyers who make $60,000 or more with bonuses to start out and the judges are, you know, are making $150,000 and the practitioners are making, you know, many times that.

So, I think that that disparity in income reduces the pool of talented people. This was observed by the former Chief Justice of the United States Rehnquist … in one of his year-end State of the Judiciary speeches in which he also bemoaned the fact that fewer from private practice are joining the Federal judiciary.

And that basically more and more people are coming from the government. Now they’re very fine lawyers but does that produce the balance that we want on the courts? We want people who may have had government experience, people who’ve had life experience representing clients, who have been in private practice. So I think that disparity in income has produced changes like that.

HEFFNER: Since the Chief Justice made that point … is it your impression that the trend continues in that direction?

ZAUDERER: Ahhh, I think it continues and I think there’s another factor at play as well. And this is not the fault of the judges. I think that the public in, in part the elected political …the politicians bear responsibility for this.

Judges have often been convenient punching bags for problems in society. And just as all professionals at one time were held, I think, in higher esteem than today … doctors, lawyer, judges … there’s a cynicism today that didn’t exist. So that the position of judge may be less appealing to some.

Because many people make a financial sacrifice to become a judge, too, it’s not just those who don’t want to apply, but some who apply and become judges, do so not only because of the public service involved, but a, a fulfilling sense of public responsibility.

Well, you know, one of the currencies that, that somebody enjoys is, is the public respect and if the public does not hold them in the esteem they, they deserve, that reduces the appeal of the office … it would for, for anybody.

HEFFNER: Are judges, in your estimation, to your knowledge, I should say … are they held in public esteem or not held high in public esteem in terms of different regions of the country?

ZAUDERER: I think so very much. I think as you, as you get outside of urban areas, I think … just as many traditions have remained less changed than in urban areas … I think there is … ahh … in general a greater respect.

You know the judge in a small community is likely to be integrated in the community … they, they know the judge like they know the doctor or they know the, the preacher. And the position is one that is fairly universally treated with, with respect.

You know, here in New York City, for example, the judges get jostled on the subway train with everybody else. So, you know, it’s a more impersonal environment.

And I think in that kind of setting it’s natural that the esteem or respect that they deserve … can be somewhat (laugh) diminished.

HEFFNER: Is there any indication … going back a step …

ZAUDERER: Yeah.

HEFFNER: … that the Congress now will do anything about the Federal judiciary’s pay? Is there any movement?

ZAUDERER: That’s been an on-going battle and it’s a really sad story. Because it’s gotten so twisted with politics. The, the attempt to raise judicial salaries … I mean there have been cost of living adjustments, but they’re really, really lagging quite badly.

And on that point and my, my previous point if I might add … the political community has not been publicly supportive of judges. I said they’re convenient punching bags.

You know how often have we seen some commentator on television say something like, ‘”Oh, did you hear about that judge in Nebraska or, or Vermont that let that criminal go on low bail”, knowing nothing about the facts of the case. Or whether the judge was actually following the law.

You know, or a former President who slipped and fell and made some remark about … oh, I was wearing my tasseled loafers … or some other reference to something that may be associated with lawyers … is not good for … is not good for society … it’s not good for the public.

And I think politicians who help educate the public to the important role that judges play do a service rather than a disservice.

HEFFNER: The, the … we talked about the Federal judiciary, if I’m not wrong … here in New York State we’re just as bad in terms of meeting the financial needs of people who serve in the judiciary.

ZAUDERER: Absolutely. Salaries have lagged and another factor that affects the quality of justice is with the budget constraints the courts are operating under.

There’s been a reduction in staff, you know, and it finds it’s way into the justice in insidious ways. Decisions get delayed, the time that can be spent reviewing and giving judges support on particular cases is reduced.

HEFFNER: So the caseload of each judge has gone up.

ZAUDERER: The caseload goes up and the time spent on each case … reduced.

HEFFNER: Do we still have more justice in this country …do you think … than you find other places in the civilized world?

ZAUDERER: Definitely so. Definitely so. I’ve watched proceedings in Great Britain from time to time. On the one hand they’re impressive … the bar is articulate, the, the judges are articulate … the people generally … in the system … the judges are of, of high quality … but, but we have in America a culture and a lot … much of it is written into our Constitution that we value very highly.

Our Bill of Rights, for example, I think our judges are always alert to preserving those rights. We see cases all the time in which these Constitutional rights are implicated, or we have a clash of Constitutional rights … freedom of speech … freedom of the press … the right of … we had a case recently in the, in the news about the New York Court of Appeals came down with a decision that was very supportive of, of reporters confidentiality … protecting their sources, that didn’t have to respond to a subpoena in another state to produce notes of, of interviews.

But the point is that the courts are very conscious of these important bedrocks, you know, of our society. More so I think than we find in other countries.

HEFFNER: Mark Zauderer, I’m always pleased to talk with you here on The Open Mind and clearly the judiciary provides us with a lot of space and food for thought. Thank you for joining me again today.

ZAUDERER: My pleasure.

HEFFNER: And thanks, too, to you in the audience. I hope you join us again next time. Meanwhile, as another old friend used to say, “Good night and good luck.”

And do visit the Open Mind Website at thirteen.org/openmind to reprise this program online right now or to draw upon our Archive of 1,500 or so other Open Mind and related programs. That’s thirteen.org/openmind.