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End the mandatory retirement age for judges

The Daily Record reported Tuesday on the five applicants for the vacant Court of Appeals seat that is the result of the “retirement” of Judge Glenn T. Harrell Jr. I used quotation marks because Harrell’s departure from the high court is most likely not voluntary, though I cannot purport to know the thoughts of the judge. That Harrell’s seat on the court is vacant, in other words, is the result of a forced retirement by law.

The Maryland Constitution sets the mandatory age of retirement for all judges in the state at 70. Maryland is not unique in this regard; 31 other states force the retirement of at least a portion of its judges when they reach a certain age.

In 2011, the Court of Appeals conducted an in-depth analysis of the retirement provision of the constitution after a sitting judge challenged his removal from the bench upon reaching his 70th birthday. In Bernstein v. State, 422 Md. 36 (2011), the court discussed the history of the mandatory retirement provision, noting that some form of age prohibition has existed here since 1851. From the court’s analysis, the underlying premise of the exclusion centered upon concerns of the effects of aging, with a focus on ensuring the physical and mental health of judges. On the other hand, the court recognized that the policy, which has been retained by several, subsequent constitutional conventions (1864, 1867, and 1966) may be losing traction:

Times change. Life expectancy has increased dramatically since the 1867 Convention, and the ease of moving from one locale in the state to another has improved even more over this period. Remarking upon what he perceived to be an antiquated policy, one critic of the decision, made at the 1966 Maryland Constitutional Convention, to retain the seventy age limit, labeled it “constitutionally imposed senility.”

Maryland’s historical policy of forced retirement runs contrary to chief judge’s ability to recall retired judges into service even after they have reached, as it has been referred, “the constitutionally recognized age of senility.” Retired and recalled judges may serve at any age in Maryland, and are only limited in service by a duration provision (no more than 180 days in a year).

With the increasing life expectancy of adults in recent years, I think it’s finally time for Maryland to do away with mandatory retirement of judges. For those that are loyal followers of my blog posts (thank you!), my positions regarding laws that restrict judicial independence are well-known; I lauded Supreme Court Justice Ruth Bader Ginsburg for being an active member of the Supreme Court as an octogenarian. A quick review of Harrell’s record, courtesy of the Court of Appeal’s appellate opinion search, lends no support to the notion that his “advanced” age inhibits him from being an excellent jurist. Harrell authored between 17 and 25 opinions per year between 2011 and 2014. With 13 reported opinions so far in 2015, he was on track for another productive year on the bench.

I do not understand why the legislatures of 32 states think that mandatory retirement is necessary to protect the public from having doddering old judges on the bench when there is seemingly no public outcry regarding lifetime judicial tenure for federal judges. If the framers of the U.S. Constitution trusted federal judges with the responsibility of stepping aside when the time is right, why don’t the states have the same trust for its judges? If we have the confidence in judges to confer upon them the necessary legal and equitable powers to maintain a democratic society, surely we can trust them to know when the time comes to exchange the gavel for golf clubs.