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The state’s chief judge, Jonathan Lippman, calls the old age limit “outdated,” and Althouse replies:
What is outdated about thinking that older persons hang onto their jobs too long and fail to open positions to younger persons with new perspectives and experience with life as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 What is outdated about thinking that judges, cloistered and cosseted by the respect their office commands, lack accurate feedback about how well they are really doing? What is outdated about thinking that the judges, with their sharp and hardworking ghostwriters (AKA “clerks”), are unusually shielded from having their failing competence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.
They appear to have gotten one very conservative San Diego judge exiled to traffic court [Will Baude]
Does the system protect its own? “A former Alameda County Superior Court judge charged with swindling a 97-year-old neighbor out of her life savings pleaded no contest Thursday to elder abuse and perjury and will not face jail time.” [San Francisco Chronicle, earlier]
An attorney for a Pennsylvania Supreme Court Justice denies that there was anything improper about personal injury referral fees paid to the judge’s wife, who has also served as his chief aide over much of his time on the bench. Eight law firms are reported to have paid the judge’s wife referral fees; although most of the amounts have not been disclosed, one that was disclosed amounted to $821,000. Legal ethics expert Geoffrey Hazard said the judge “should not have participated in any case involving a firm that had been a source of referral fees for his wife. However, Bruce Ledewitz, professor of law at Duquesne University, said he did not think McCaffery was under an obligation to tell litigants about the referral fees.” An attorney for the judge “said the newspaper had engaged in a ‘slanderous campaign’ to pry into ‘Ms. Rapaport’s legitimate and proper legal business relationships with her colleagues.’” and said the law firm responsible for the large fee noted above had not had a case before the court. [Philadelphia Inquirer via Milan Markovic, Legal Ethics Forum; PhillyMag]
…are likely to be bad news in more ways than one [Belleville, Ill., News-Democrat on arrest of St. Clair County, Ill. Circuit Judge Michael Cook] St. Clair County is adjacent to Madison County in the Metro-East area of Illinois near St. Louis, and shares in its reputation as a “difficult” jurisdiction for unwary litigants. More: AP today.
“A Michigan judge whose smartphone disrupted a hearing in his own courtroom has held himself in contempt and paid $25 for the infraction.” [AP]
Please don’t do these [in some cases alleged] things:
- Calif.: “Judge accused of stealing elderly neighbor’s $1.6M life savings resigns from bench” [ABA Journal]
- Stan Chesley joins a rogue’s gallery of disgraced litigators [Paul Barrett/Business Week, earlier here, etc.]
- San Francisco’s Alioto firm: “Attorney and law firm must pay $67K …for ‘vexatious’ suit challenging airline merger” [ABA Journal, Andrew Longstreth/Reuters (Joseph Alioto: "badge of honor"), Ted Frank/PoL (sanctions are small change compared with enormous fees obtainable through merger challenges]
- N.J.: “Lawyer takes state plea, will pay $1M to widow’s estate” [ABA Journal]
- Texas: “State Rep. Reynolds charged with 7 others in barratry scheme” [SETR]
- “Paul Bergrin, ‘The Baddest Lawyer in the History of Jersey,’ Convicted at Last” [David Lat/Above the Law, earlier]
- “Attorney’s mug shot winds up next to his law firm’s ad, in marketing effort gone awry” [Martha Neil, ABA Journal]
- Once the American legal profession reformed itself, but that was long ago [John Steele Gordon]
I respond at Cato to a remarkably lame piece by Slate’s Emily Bazelon. Earlier on the case here and here.
Judges move slower than markets but faster than the economics profession, a deadly combination.
– Judge Frank Easterbrook, “Comparative Advantage and Antitrust Law” (California Law Review, 1987).
At Cook County Judge Cynthia Brim’s trial this week, “she was found not guilty of misdemeanor battery because she was ‘legally insane’ at the time.” Cook County voters re-elected Brim in November despite reports of her troubles [South Bend Tribune/Chicago Tribune, earlier]
“Michigan Supreme Court Justice Diane Hathaway filed retirement papers last month, but she didn’t announce her plans until Monday when the state Judicial Tenure Commission accused her of ‘blatant and brazen’ misconduct.” Hathaway had allegedly hidden assets from creditors during a real estate short sale and responded untruthfully during a judicial disciplinary investigation of the matter. [Debra Cassens Weiss/ABA Journal, Volokh]
It is worth noting that Justice Hathaway won an upset victory over an admirable incumbent, Chief Justice Cliff Taylor, following 2008′s most unfair attack ad, in which Democrats broadcast a photo of Taylor with his eyes closed on the bench — the sort of picture that, given human physiology and the right kind of camera work, could be obtained of any jurist — and accused him of sleeping. Taylor told the Detroit News that the piece “wasn’t true, but it was a very compelling piece of political theater”. I noted the story four years ago. In hindsight, we can see that the attack ad not only took down an outstanding judge, but elevated a challenger who proved little credit to the bench.
I’m in today’s New York Post with an op-ed about how, agree or disagree with Bork’s views, you can’t defend many of the tactics used against him in 1987. Earlier here (& welcome Nick Gillespie/Reason, Andrew Sullivan, Stephen Bainbridge, Reihan Salam, Tom Smith, Pejman Yousefzadeh, Jonathan Adler/Volokh, Memeorandum readers).
More: David Frum recalls a very funny Bork law exam. Ramesh Ponnuru defends Bork’s famous “inkblot” comment as reasonable in its context. Much more on that question from Randy Barnett. Paul Alan Levy of Public Citizen casts a vote against. At Secular Right, I add another observation or two about Bork’s religious views. Via Andrew Grossman, a clip on the beard issue.
Yet more: Richard Epstein at Ricochet. Meanwhile, some commentators have taken the line that uncivil or not, the actual charges by Kennedy and others against Bork were accurate enough. Mickey Kaus, who is sympathetic to judicial restraint but less so to Bork, links to a 1989 New Republic review in which he shed light on that:
True, paranoia on Bork’s part is amply justified. There is a liberal legal culture, and it was out to get him. … And it got him, in part, by sleazily misrepresenting some of his views. Most famously, a narrow Bork ruling was falsely characterized as favoring “sterilizing workers.” But there were other nasty distortions, not all by fringe interest groups. Senator Edward Kennedy charged that in “Bork’s America… schoolchildren could not be taught about evolution,” when Bork had never opposed teaching evolution. Senator Paul Simon implied Bork might approve the pro-slavery decision in Dred Scott.
Ilya Shapiro salutes the distinguished judge for his revival of originalism, his resistance to Warren Court lunacies, and his single-handed transformation for the better of the field of antitrust. “The injustice and character assassination done against him in 1987 was a watershed moment that changed American history and government for the worse,” notes Ted Frank.
More: NYTimes obit; Roger Pilon; John Podhoretz, Commentary; Timothy Sandefur; Adam White, Commentary, on the 1987 Supreme Court confirmation fight a quarter-century later; my extremely critical review of Bork’s 1997 Slouching Toward Gomorrah; Jay Nordlinger with an anecdote of Patrick Leahy and Judge Bork; more on Bork’s religious beliefs from Eric Olson (no relation) at Catholic World Report; Michael McConnell; Jeff Rosen. Andrew Grossman reminds us that even if we may take it for granted now, Bork’s work on antitrust was a big, big deal in the revitalization of economic dynamism.
New York’s highest court, the Court of Appeals, has a particular niche among state courts: it’s liberal on many matters, as suits the state’s politics, but over the years has tended to take care that its commercial law is relatively predictable and efficient from a business perspective, since it would rather not risk tempting the state’s huge business sector to flee to other jurisdictions. With two vacancies on the court, Gov. Andrew Cuomo now has a chance to confirm the court’s historic path, or set it on a different one. [Lawrence Cunningham]
“Behold the power of incumbency,” including Judge Cynthia Brim’s successful campaign to retain her $182,000/year job; her “18-year tenure,” as the Chicago Tribune puts it with wry understatement, “has been marked by controversy.” [Above the Law]
I had the honor of moderating a debate at Cato on Thursday between Judge J. Harvie Wilkinson III, author most recently of Cosmic Constitutional Theory: Why Americans Are Losing Their Inalienable Right to Self-Governance, and the Cato Institute’s Roger Pilon on the proper role of restraint and energy in judicial protection of constitutional liberty. It was a scintillating discussion and you can watch it above, or at this Cato link.