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Editorial: Age limit for justices could use a review

Thu., Oct. 1, 2009

Three years ago, Chief Justice Gerry Alexander ran for a state Supreme Court term he knew he couldn’t complete, thanks to Washington’s mandatory retirement age for judges. His richly funded challenger made a red-herring issue of that, but voters didn’t fall for it. Alexander won in the primary by a comfortable 88,000-plus votes.

Alexander’s age returned to public attention this week after he announced he’ll turn the chief justiceship over to one of his colleagues next year and will serve out his term as an associate justice. Alexander has been chief justice since 2001, the longest tenure in that position in state history and a measure of the respect his colleagues have for him.

But the constitution is emphatic. A Supreme Court justice or Superior Court judge in Washington has to retire at the end of the calendar year in which he or she turns 75, meaning Alexander’s career on the court will end Dec. 31, 2011.

In other words, he’ll have to step down after only five years of a six- year term, and the governor will appoint his successor. That’s troublingly arbitrary for at least two reasons, leading us to believe it’s time to reconsider a half-century-old decision that may no longer be sound – if it ever was.

Troubling factor No. 1: In a state that relies on voters to pick judges, appointment by a partisan official puts judicial independence at risk.

Troubling factor No. 2: While mental acuity may decline with age in some cases, age 75 isn’t an automatic gateway to dementia. It should be up to voters to examine their public officials, including judges, and cast their ballots accordingly.

In 1951, when state lawmakers sent House Joint Resolution 6 to the ballot, the average life expectancy of an American was 66.3 years. Today it’s almost 78. Our understanding of aging and productive capacity is substantially different than it was 58 years ago.

Most states have mandatory retirement ages for judges, but 16 get along fine with no such restriction – states as geographically and ideologically diverse as Orrin Hatch’s Utah and Joe Biden’s Delaware, Nancy Pelosi’s California and Mitch McConnell’s Kentucky.

Alexander shows no signs of cognitive failings, but, for the record, he thinks mandatory retirement at 75 is reasonable. But if Washington citizens want to choose judges on merit rather than an age-based stereotype, the Legislature will have to present voters with a constitutional amendment. At the very least, a judge who turns 75 after election ought to be allowed to serve the full term.