If old judges are so wise, why can’t they clean up Pennsylvania courts?
This is Part 2 in our three-part series. Part 1 . For Part 3 vist here.
Constitutional convention intent: retiring judges at 70 as modern court reform
The current provision that state judges must retire at 70 came out of Pennsylvania’s constitutional convention of 1967-68.
Say what you will about the state’s constitutional convention of ’67-68, it wasn’t entirely composed of political hacks and upwardly mobile township supervisors, as we evidently see in today’s partisan state legislature.
Delegates to the convention included luminaries like author and state native James Michener, and former Gov. Bill Scranton. During his tenure as governor in the early 1960s, Scranton spent considerable political capital pushing for a convention to modernize state government.
As the Pennsylvania Bar Association recounts:
“At the beginning of the twentieth century it became obvious that there were serious problems with the Constitution of 1874, and that it was insufficient to meet problems of the new century. As a result, a succession of governors campaigned on the issue of constitutional reform and sought to convene constitutional conventions. Between 1900 and 1968, the voters defeated no less than six proposals for constitutional conventions to revise the Constitution.
“In the 1950’s calls for a revision of the constitution were widespread. A succession of governors and attorneys general, the Pennsylvania Bar Association, some members of the legislature, and numerous nonprofit organizations joined the call for a limited constitutional convention. In 1967 the voters approved the call for a limited constitution convention. It was held in 1967-1968, and the convention proposals were approved by the voters in 1968.”
The 1967-68 convention’s clear intent in inserting the mandatory retirement of judges at age 70 was to give the public a mechanism to remove from the bench judges who had stayed on too long and to limit the sort of political and judicial chicanery we see today.
Documents and testimony from the convention make this abundantly clear.
Prominent in the call for the mandatory retirement of judges at 70 was Pennsylvania lawyer and state bar association member Bernard Segal.
Segal was renowned for his tireless work for the little guy. He worked in the civil rights movement, and was an early advocate of providing lawyers for the indigent. Segal was known as the nation’s foremost advocate for the merit selection of judges. In the 1950s Segal persuaded President Dwight Eisenhower to submit the names of prospective judicial nominees to the American Bar Association for review and recommendations, a practice that continues to this day. He convinced U.S. Attorney General Robert Kennedy and President John Kennedy to marshal lawyers to help with the civil rights movement. In the 1950s he was elected chancellor of the Philadelphia Bar Association, and in 1969 would become president of the American Bar Association.
Segal was a driving force behind the judicial reforms of the Pennsylvania constitutional convention of 1967 and 68, and the call to retire state judges at the age of 70.
“It is regrettable, but grimly true, that one bad judge can undo the efforts of a hundred excellent judges,” Segal told the state constitutional convention’s Preparatory Committee in 1967. “…(E)ven a very few unfit judges constitute a serious impediment to the efficient administration of justice. In Pennsylvania today, we have a single method of removal (of judges), i.e., impeachment.”
But impeachment isn’t very practical, Segal pointed out. “One need not delve very deeply into the virtually complete nonuse of the impeachment process for the removal of members of the judiciary, or of the problems which would be created for the General Assembly, if it had to sit, first as an impeaching body in the House, and second as a convicting body in the Senate, to realize this vehicle is virtually worthless to meet the problems created by the aged, the inform, or even the corrupt judge.”
Nowhere did Segal use the word senile. Instead, the mandatory retirement age of 70 was part of a sweeping proposal to make our courts modern and impartial, and youthfully efficient, without political entanglements and chicanery.
Segal told the committee in 1967, “If I were asked to summarize in a single sentence the objectives and provisions of the proposed Article, I would say that it creates a modern, integrated, unified judicial system, in which judges will be freed of political involvement and will be enabled to conduct their judicial duties with a maximum of independence and efficiency.” (Emphasis mine.)
The proposed changes of the 1960s constitutional convention grouped the mandatory retirement age of 70 into a category labeled, “Judicial Removal, Discipline and Compulsory Retirement.” In short, it was about creating much-needed mechanisms to get rid of these guys, and their entrenched power bases, which, left unchecked, play havoc on the political and judicial establishments, as we see today.
It was about limiting politics in the courts, and eliminating the old-boy power brokers from the bench so we could concentrate on, as Segal would say, justice for all, and not court-ordered politics for a few entrenched insiders.
The proposal to retire judges at 70 wasn’t controversial at the state constitutional convention. It seemed to delegates necessary, common sense, and altogether reasonable. Mandatory retirement at 70 was not only backed by the state Bar Association, but delegates at the convention, and state voters who overwhelmingly approved the constitutional changes at the polls in 1968.
(What was and continues to this day to be controversial was Segal’s call for merit selection of judges in Pennsylvania, which ultimately was defeated by state voters at the polls in 1969 by a narrow vote of 643,960 to 624,453. The appointment of judges in Pennsylvania was a practice dating back to founder William Penn. “The judicial appointive system came under attack during the administration of President Andrew Jackson (1829-1837), amid the growing sentiment that all governmental office holders should be accountable to the voters and therefore elected,” Pennsylvanians for Modern Courts tells us. In the 1800s the state constitution was changed to elect judges. Since then, the election of judges has been very hard to end.
Delegate Bill Scranton, a member of the convention’s judiciary committee, described the debate over merit selection versus the election of judges as, “by all odds, … the most contentious and the most contested of all the portions of (the judiciary) article within the committee.” Delegate William Stout added that the election of judges and its attendant politics was “the hottest, most controversial issue of this convention.”)
Unlike the defeated merit selection proposal, the mandatory retirement of judges at 70 was not very controversial at all among the convention’s forward-thinking delegates. Everyone seemed to understand that old judges gathered moss, and fostered political corruption and judicial trouble.
Scranton called the new changes to the judiciary, including mandatory retirement of judges at age 70, “revolutionary,” “a new modern era for our judicial system,” and among the most progressive in the nation. “Retirement is called for at the age of 70 for everybody,” Scranton pithily summarized this judicial reform at the convention.
Despite these hard-fought reforms by convention delegates, and their subsequent ratification by voters at the polls, today’s judges what us to forget all that.
In this year’s pitch on behalf of Rep. Kate Harper’s bill to extend the retirement age of judges to 75, the proponents of eliminating the 70-and-out clause essentially make a spurious argument that people don’t go senile at 70 these days like they used to.
The same argument was made in an unsuccessful 2012 federal lawsuit filed by six state judges. In their failed federal lawsuit, the Pennsylvania judges went so far as to argue that they are entitled by “the inherent rights of mankind” to stay on as long as they desire, or until they can no longer drag themselves across the floor to the bench, whichever comes first.
This and another, recent state court challenge to the mandatory-retirement-at-70 clause were defeated at the bar (meaning, in the courtroom, not in a bar room, as some might suppose by the misbehavior of today’s jurists). If you want to stay longer, commonwealth attorneys told the courts, judges should get the legislature to change the state constitution.
In a brief filed in the 2013 state court challenge, commonwealth attorneys wrote, “A judge has no more right to serve beyond the time set by the Constitution than a governor has a right to seek a third term.”
This two-term limit for governors was also set by the 1960s convention to limit the power of the executive, the same as the judges’ careers were limited. It was all about defining and limiting powers, as constitutions usually are.
But this hasn’t stopped today’s judges from trying to grab more political influence and money with time on the bench, against the express wishes of the framers.
Next week: Part 3: Enter Rep. Kate Harper
