How old is too old to be a judge?

Feb 1, 2013

You know how they say 40 is the new 30? According to Michigan's Constitution, 70 is the new senile. 

If you're over the age of 70, you can't be elected or appointed to the bench in this state.

That's a rule that dates back to 1906, according to former Supreme Court Justice Marilyn Kelly, when life expectancies were shorter.

For Kelly, a Democrat, the law means she had to step down when her term ended in January. She's 74. Asked how it feels to be too old to do her job, she laughs.

"Well, I've only had about 30 days to grow senile, so I haven't quite achieved it yet!"

But Kelly says the age limit hurts regular Michiganders more than judges.

"We have invested in the judges who reach this age. Perhaps years of experience that they bring to bear on the court, that's lost when we tell them they're too old to serve."

Now several lawmakers are joining Kelly in her opposition to the age cap on judges. This week, the Senate Judiciary Committee unanimously voted to overturn the law. 

But it's an uphill battle from there: a super-majority in both the Senate and the House would need to approve that measure.

At that point, it would go on the ballot in the next general election. Remember how much Michigan voters liked constitutional amendments in 2012? (Hint: not much.) 

State Court Administrator Chad Schmucker is proposing a compromise. He says Michigan should consider just raising the age limit, not scrapping it altogether.

Schmucker argues it'd be a long, drawn-out headache to try to forcibly remove a judge who was no longer up to the job and refused to step down.

But former justice Kelly doesn't think so. "We can discuss a different age limit, but we now have some mechanisms in place that would allow us to remove a judge more easily if he or she had reached the point where they couldn't serve and wouldn't step down."

She says that's one of the purposes the Judicial Tenure Committee can serve. "They regulate the profession, so when a complaint is filed, they can tell the Supreme Court that this judge should be removed from office."

Four out of seven of the justices on Michigan's Supreme Court would need to agree in order to remove the judge in question. 

This isn't the first time Michigan lawmakers have debated the judicial age limit. Last year, a task force in Lansing recommended removing the cap. 

But Kelly hopes this time around is different. "This is an idea whose time has come. Many people hadn't really realized that we have this provision, which in this day and age looks like age discrimination."

Also, Kelly admits she'll just plain miss the work.  

"Well, definitely. I enjoyed the work. I felt I learned over the 16 years I was on the Supreme Court. I learned a great deal about the job. I'd reached a point where I felt I could contribute more than I could when I was in my early learning stage. So I felt it was a pity that I couldn't continue to contribute."