Washington Most state judges in the U.S. must retire in their 70s

By Rachel La Corte

Associated Press Writer

OLYMPIA, Wash. (AP) -- Chief Justice Gerry Alexander has written more than 330 opinions over the nearly 15 years he has served on Washington state's highest court, and the state's longest-serving chief justice doesn't expect to slow down in his final two years on the bench.

"As I sit here looking out through these eyes, I feel the same as I did when I became a judge. I think I have my wits about me," he said, laughing, "but maybe you should ask somebody else."

Alexander is set to retire at the end of 2011, the year in which he will reach the mandatory retirement age of 75 for judges in Washington. Alexander announced last month that he will step down next year from his post as chief justice and serve out the remainder of his term as an associate justice in order to ease the transition to his retirement.

Washington state is among the majority of states that require state judges to step down once they reach a certain age, varying between 70 and 75, depending on the state. Vermont has the highest age limit, at 90. Washington state's age limit was enacted in 1952, after voters overwhelmingly approved a constitutional amendment referred to them by the Legislature.

Alexander said that while he feels he could do the job for another decade, being forced to step down "doesn't bother me too much."

"I think 75 is reasonable," he said, though he did say he wished he could finish his term. Alexander will have to retire after completing five years of his six-year term.

Howard Eglit, a law professor at Chicago-Kent College of Law, said the age limit laws were enacted in many states "based in good measure on the assumption that increasing age carries with it declining intellectual ability."

"It's an inflexible rule which is harsh in one respect because it weeds out both the competent and the incompetent, but on the other hand is merciful, because it doesn't require people to be told 'you just are not competent anymore to do the job,'" said Eglit, who has written extensively about age discrimination in the workplace, including within the legal system.

The federal Age Discrimination in Employment Act, which bans mandatory retirement in all but a few circumstances, has been interpreted by the U.S. Supreme Court as not extending protection to older judges.

Nineteen states, including California, Nebraska and Maine, don't require state judges to step down in their twilight years. While Arkansas is included among those that don't have an age limit, judges there forfeit their benefits if they run for their seat past age 70. This past June, the Illinois Supreme Court tossed out judicial age limits there on technical grounds. And some states with mandatory age limits, including Washington, allow retired judges to serve on the bench in substitute roles.

There are no age limits for federal judges, who under the U.S. Constitution are appointed for life. Four members of the nine-member U.S. Supreme Court are over 70: Justice John Paul Stevens is the oldest at 89, Justice Ruth Bader Ginsburg is 76, and Justices Antonin Scalia and Anthony Kennedy are both 73.

Lee Strang, an associate law professor at the University of Toledo College of Law, said he thinks the majority of states' approach to judicial retirement is superior because "it avoids situations where judges are on the bench past their prime, a situation that has in fact occurred on the U.S. Supreme Court on at least a couple of occasions."

"It's not unjust to take into account the age of folks who are doing this very heavy intellectual lifting," he said. "These are not easy jobs, it takes a lot of intellectual firepower to do them."

But Eglit said that advanced age doesn't necessarily equate to diminished intellectual heft.

"I think you should judge people on the basis of competency, how they're performing, not on the basis of age," he said. "Age is an individualized thing. You can have a 40-year-old who's suffering from dementia, and a 90-year-old who's doing just fine."

Former New York Chief Judge Judith Kaye, who was forced out by age limits last year after she turned 70, said she wouldn't have left the "dream of a lifetime" job if she didn't have to, but stopped short of criticizing the age limit, saying she had "mixed emotions."

"I have no question that I was capable of continuing on in the job," said Kaye, who is now an attorney at Skadden, Arps, Slate, Meagher & Flom in New York City. "I feel very happy at my law firm. But I will forever miss being chief judge."

Bills have been introduced in some states in recent years, including Minnesota and Hawaii, to repeal age limits, but haven't gained much traction. In July, New Hampshire Gov. John Lynch vetoed a bill that would have allowed judges there to serve beyond the state constitution's mandatory retirement age of 70.

Eglit said there's not much outcry from judges because many have a healthy pension awaiting them, as well as the opportunity to try something different.

Alexander, who was elected to Washington state's high court in 1994 and has served as chief justice since 2001, agreed.

He said that after retirement, he very well may end up back where he first put on a judge's robe at age 37 -- at the superior court level.

"It would be kind of exciting for me to go back and preside over a jury trial," he said with a smile.