2006 Spring, 42. Old Age and Judging.

AuthorBar Journal Author - Attorney Michael Lewis

New Hampshire Bar Journal


2006 Spring, 42.

Old Age and Judging

New Hampshire Bar Journal Volume 47, No. 1, Pg. 42Spring 2006Old Age and JudgingBar Journal Author - Attorney Michael Lewis"It is revolting to have no better reason for a rule of law than that it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past."

- Justice Oliver Wendell Holmes, Jr.

Part II, article 78 of the New Hampshire Constitution provides that "(n)o person shall hold the office of judge of any court . . . after he has attained the age of seventy years."

This means that regardless of whether a judge is able to bestow the benefit of added wisdom to the process of judging through his wealth of experience, and regardless of whether he remains more productive than many of his younger counterparts, he must relinquish the gavel to greener blood once he has reached the age of 70.2 The question addressed by this essay is whether such a rule makes sense in modern times. I conclude that it does not and I recommend that the rule be replaced by limits on judicial tenure that are not explicitly related to age.

There can be but a few affirmative reasons why a 70-year age limit continues in force more than 200 years after it was enacted. One may be a blanket supposition that the quality of justice would be impaired if imparted by the ancient.3 Another may be the desire to place out-side limits on the length of judicial tenure in order to ensure democratic accountability. A third may be the desire to keep judges from becoming stale and out of touch. Still a forth (related to the third) may be the desire to ensure judicial turnover.4

If the first is the reason, then the question we must ask ourselves is whether modern advances in medicine and life expectancy should change our view of when one will be too old to competently serve as a judge. If the second, third and fourth are the reasons, we must ask whether there are better, and less discriminatory ways to ensure democratic accountability, judicial freshness, and the turnover of personnel.

In what follows, I explore these questions. In the first section, I briefly describe the historical origins of the rule as well as the relevant historical characteristics of the time in which it was enacted. In the second section, I examine how advances in medicine and public policy should affect our evaluation of the rule in 2006. Finally, in the third section, I examine an alternative way in which judicial tenure may be limited, a way which I suggest the state adopt.

I. The Wisdom of Ages

It may come as a surprise to some that New Hampshire was the first of the original thirteen colonies to draft a written constitution in the wake of hostilities with Great Britain.5 Bereft of a departed royal government and on the verge of revolutionary war, citizens banded together to enact a parliamentary alternative that vested legislative, executive and judicial power in the hands of a single elected branch. For a number of predictable reasons commonly associated with single branch rule, citizens called for a change in 1784. This time it was the spirit of Montesquieu's theory of separation of powers that prevailed, giving birth to a fledgling independent judiciary with life tenure and salary protection.6

As Susan E. Marshall remarked in her recent account of the subject, "The drafters of the 1784 constitution had the foresight to realize that the document they created would require review and perhaps revision after a relatively short period of time."7 They therefore included a provision in the 1784 draft requiring the legislature "to call for the election of a convention to review the constitution seven years after its adoption."8 As a result, the historic Constitutional Convention of 1791 was held in Concord, and yielded a blizzard of important changes to the then only recently adopted Constitution of 1784.9 Among them were amendments securing the independence of the executive, restoring the title of "governor" to the chief executive officer (under the 1784 Constitution, the "chief" was referred to as the "president"), dividing the state into 12 senatorial districts, and eliminating poll taxes that formally prevented paupers from voting.10

Some of the most far reaching changes proposed related to the state's judiciary. At the helm of this effort was a young lawyer-statesmen named William Plumer. Born in Newcastle and raised in Epping, Plumer's first foray into public life came in opposition to the drafters of the 1784 constitution, who succeeded in restricting free speech rights to Christians, and the right to hold higher public office to Protestant Christians.11 Fortunately, these very strong and likely unpopular views did not prevent him from advancing in the world of state politics, and by the age of 31 he had become one of the state's most prominent attorneys, as well as the speaker of the New Hampshire House of Representatives.12

Even more than the Constitution's religious tests, Plumer was absorbed by questions regarding the jurisdiction and political structure of the state's judiciary.13 Indeed...

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