Editorial: State should give judges more time

Friday, January 05, 2018

Last summer, state Supreme Court Justice Carol Ann Conboy, the second woman appointed to the centuries-old court, was forced to retire because she turned 70. She was serving admirably and had no desire to go. Next fall, Chief Justice Linda Dalianis, the first female appointed to the court and the first female chief justice, will be forced to retired for the same reason. What a waste of wisdom, experience and yes, money.

Judges, if they’ve served at least 10 years and reach age 65, receive a pension equal to 75 percent of their last year’s salary. So the choice facing lawmakers is: pay a full salary to keep a judge on the bench who wants to keep working, or three-quarters of a salary to a judge forced to retire early. Fiscal prudence favors keeping older jurists on the job.

A bill filed by Sen. Sharon Carson of Londonderry would raise the judicial retirement age to 75. Some states, Maine is among them, set no mandatory retirement age. Last year, Pennsylvania voters approved a constitutional amendment that raised that state’s judicial retirement age from 70 to 75. New Hampshire would have to amend its constitution to do likewise. That requires a three-fifths majority vote of the House and Senate and passage by two-thirds of voters at the polls. The bar is high, but it can and should be cleared.

The mandatory retirement age of 70 for New Hampshire’s judges and sheriffs was set by the state Constitution. The year was 1792. The average life span in that era, according to Legacy.com, was 36. That figure is no doubt skewed by what today would be considered scandalously high infant mortality rates. The Founding Fathers, for example, lived to a reasonable, if not ripe, old age. Benjamin Franklin died at 84, George Washington at 67, Thomas Jefferson at 83 and John Adams at 91.

Today, the average life expectancy is in the late 70s for men and 80s for women. Seventy may not be the new 50, but compared to even a generation or two ago, it’s at least the new 60. Recognizing that, in 2003 Vermont raised its mandatory judicial retirement age to 90. The fear, today as in 1792, is that some judges will stay on past the age when time has taken a toll on their mental faculties. Protection against that, no matter what retirement age a state sets, is provided by judicial conduct committees, disciplinary commissions and the justice’s own colleagues.

Federal judges are appointed for life and face no mandatory retirement age. The lifetime appointment helps to protect judges from political pressure or threat of retribution that might affect their vote. But it has meant that many federal judges work well into the years when statistically, their age group faces an increased risk of Alzheimer’s or dementia. Courts on both the state and federal level should institute formal measures to regularly verify judicial competence.

Raising New Hampshire’s judicial retirement age to 75 would be a reflection of the realities of modern health care and increased life spans. It would hardly be a bold step, given that three of the U.S. Supreme Court justices are well past that age: Stephen Breyer is 79, Anthony Kennedy is 81, and Ruth Bader Ginsburg is 84. Their ability to serve has not been called into question.

Lawmakers should vote yes on Carson’s bill.