“Why did New Yorkers decline — by a huge 61 to 39% margin — to end age discrimination against judges?”

That’s Ann Althouse’s question. (The actual measure on the ballot would have increased the retirement age for New York judges from 70 to 80, which does not go as far as the federally enacted mandate applicable to private-sector employers, which forbids the prescription of automatic retirement at any age at all.)

The state’s chief judge, Jonathan Lippman, calls the old age limit “outdated,” and Althouse replies:

What is outdated about thinking that older persons hang onto their jobs too long and fail to open positions to younger persons with new perspectives and experience with life as it is lived today? What is outdated about thinking that judges, cloistered and cosseted by the respect their office commands, lack accurate feedback about how well they are really doing? What is outdated about thinking that the judges, with their sharp and hardworking ghostwriters (AKA “clerks”), are unusually shielded from having their failing competence exposed?

I would add that while many advocates of modern employment law insist that we regard “age discrimination” as if it were somehow a phenomenon parallel to prejudice on the basis of race or ethnicity, and odious for the same reasons if not to as high a degree, I see little evidence that the general public has been sold on that proposition.


  • Maryland I think takes a smart approach. You are required to resign at 70. But you can come right back as a visiting judge until you are 120.

    It is a clear end run around the law but a practical one. It is easier to dump a visiting judge who is not up to snuff. But in 2013, there are a lot of very productive judges in their 80s and we want to tap into that knowledge and experience.

  • NY Judges “retire” at 70 and then are allowed to request up to 3 2-year “extensions” which are routinely granted. To “force” someone to retire at 76 seems pretty reasonable, especially given that there are still plenty of other ways a vital 76 year old person can contribute his/her talents to society.

  • […] Wally Olson at Overlawyered brought a post by Angry Blond lawprof Ann Althouse to the fore, which cast a disturbing light on […]

  • […] Wally Olson at Overlawyered brought a post by Angry Blond lawprof Ann Althouse to the fore, which cast a disturbing light on […]

  • I hope that you are aware that this piece is hysterically funny. The expert that you quoted on judicial age discrimination is named Althouse. In German this means, “Old House”.

    Best Regards,

    Michael J. Katz MD

  • In Texas we can get rid of judges who mess up or are no longer able to handle the burdens of the job because all judges are elected and have terms of 4 years (6 years for appellate judges). Contrast that to states like New York or Mass. where judges have, effectively, life tenure and there are only three ways to get rid of them: death, voluntary retirement or attaining the mandatory retirement age. Also, there are no term limits in those states. A mandatory retirement age of, say, 70 or 75 is reasonable and, if you don’t like it, then don’t accept a judgeship.