Let's get political for a second.
Oh no, you are likely thinking, isn't this blog dedicated to architecture and the like? Sure, it crosses over into the law itself, from time to time, but . . .
Well, yes, we're departing from our normal programming to bring you this public service announcement.
And in doing so, I'll note, I'm typing this just a couple of days out of the hospital, too beat up from surgery to go back into the office yet.
More on that later.
On November 8th when you go to the polls, you will be voting on Constitutional Amendment B, which would increase the mandatory retirement age of Wyoming Supreme Court justices and District Court judges from 70 to 75. Circuit Court judges are not subject to a mandatory retirement age, oddly.
The Wyoming State Bar doesn't have an official position on it, but it's pretty clear that its unofficial position is vote yes. The Chief Justice of the Wyoming Supreme Court, who can openly come out on such matters, has, and her position is yes.
Vote No.
First, let's look at some material just released by the Wyoming State Bar.
Okay, there you have it.
Now, before we go on, let's note that the average Wyomingite is 38 years old, and that Wyoming is an "old" state. So, even as a state whose population is routinely analyzed as getting older and older, it's still less than 40 years of age.
Keep that in mind.
So the arguments in favor of raising the judicial retirement age? Well, as we all know, all Americans live free of bodily defect brought on by age, illness, or decline in mental faculties until they're 102 years old.
Right?
Not hardly.
Back the above reference to the hospital
This was my view for the last week. It's a view of the mountain, between the parking garage and an administrative building belonging to the hospital.
I took the photo from here.
I'm out now.
I was in as I had a robotic right colectomy. In other words, I had a large (very large) polyp in my large intestine that had to be removed. I learned this was there when I went in for a colonoscopy. This was the following surgery.
This turned out to be a bigger deal. . . a much bigger deal, than I wanted to admit it was. In my mind, I wanted to pretend that it would be in and out, or at least I'd be out by Friday. Nope. I did get out on Saturday, but I'm feeling rather beat up, and it's clear that it's going to take several days to get back to normal.
Army with two IV hookups. I had two, as I was so dehydrated when I came in, they had a very difficult time finding my veins.
I am on the mend now, however.
I ignored the current advice, which is to go in for a scope at age 50. You really should, and my failure to do so caused me to end up with this, probably. If I hadn't had this, I probably would have died from this right about the same time my father died from something sort of related, if not perfectly related. So my life has probably been extended by modern medicine, just like the State Bar notes has generally been the case society wide.
So the State Bar is right, right?
Well, only so far as people now "live longer" as things like colon cancer don't go undetected as much as they once did, so people tend not to die of them. We don't even think of death's like that as natural deaths, whereas at one time, we pretty much did. There's a reason, after all, that in the Middle Ages people prayed for "good deaths". Dying from colon cancer isn't a good death.
But living a "long", by historical standards, life doesn't mean living one free of deterioration of some sort. It's been often noted that in recent decades the incidents of dementia have been increasing, with seemingly little public understanding that the reason for this is tied directly to longer lives. Probably the incidents of cirrhosis of the liver have increased markedly since the Middle Ages as well, in spite of the huge amount of alcohol consumed at the time, for the simple fact that if you die when you are 40 years old you aren't likely to die by that means, in spite of your diet, as compared to its impact as you age past that point. Lavran is well portrayed as aged at the time of his death in Kristin Lavransdatter when he's probably not even 50, or just over it. Kristin is probably right about 50 when she dies. The book is a fictional work, of course, but an extraordinarily well researched novel. It catches that earlier era well.
Put another way, by extending the retirement ages of lawyers up, we're guaranteeing that the percentage of them that experience mental decline while in office also goes up. There's no doubt about it.
We're also guaranteeing that the average age of jurists will incline upwards, and their years on the bench will extend.
I've already noted that the median age in Wyoming is 38 years old. Anyone in business of any kind knows that the post Baby Boom generations, Gen, X, Gen Y, the Millennials, and Generation Jones, do not have the same views and attitudes that Baby Boomers do. For some period of time, Boomers expressed some contempt of that fact in regard to younger generations, and in more recent years younger generations have expressed contempt back. Perhaps missed in all of this is that younger generations have had a much harder time with much more limited resources than the Boomers have, with that generation being the most privileged in American history. This is not to pit one generation against another, but rather to point out that a person presiding in judgement over another ought to at least have some appreciation of where that younger person is coming from and what their experiences have been.
Indeed, here's where the points made by the Bar's information sheet actually cut the other way. It notes:
By 2030, 9.5% of the civilian labor force is projected to be older than 65.
Citing for authority, the following:
Bureau of Labor Statistics, U.S. Department of Labor, The Economics Daily, Number of people 75 and older in the labor force is expected to grow 96.5 percent by 2030 at https://www.bls.gov/opub/ted/2021/number-of-people-75-and-older-in-the-labor-force-is-expected-to-grow-96-5-percent-by-2030.htm (visited June 06, 2022).
We'd note at first, that's not necessarily a good thing. That we've now returned to a condition in which the elderly have to keep working isn't a sign of a healthy economic environment, bur rather potentially the opposite. The population of the elderly working increasing society wide may mean they have to, not that they want to.
And beyond that, these are figures for the US as a whole, not Wyoming in particular.
Be that as it may, even on its face, it means that over 90% of the workforce, is age 65 or younger.
The Bar's sheet also unintentionally pointed out by something additionally cuts the other way:
Mandatory judicial retirement at age 70 has resulted in the loss of many eminently qualified Justices and Judges in Wyoming, including Justice Michael K. Davis, Justice Michael Golden, Judge Timothy Day, and Judge Thomas Sullins to name a few. If the mandatory retirement age were extended, not only could these members of the judiciary continue to meaningfully contribute to the law in Wyoming, longer service would also result in a net savings for the State.
First of all, these individuals were not "lost", they're all still living. While not mentioned in this list (which must be sort of deflating to them), I can easily think of four retired judges who are now mediators and arbitrators, at least one of whom is heavily called upon in that role. So, rather than losing them, we simply employed them, or they chose to employ themselves, in another role.
Additionally, each one of these jurists had a seat which was not abandoned, but occupied by a younger lawyer. At least one of the individuals mentioned retired years ago, and his replacement is now long serving. Why are we suggesting that he's some sort of flop? That is exactly, however, what this suggests, untrue though it would be.
Additionally, like to say, of course, that we're a nation of laws, not of men, but those laws are filtered through the experiences and eyes of men, no matter how a person might wish to believe it. The economic concerns, for example, of average Americans in their late 20s in the 2020s, who push marriage off for financial considerations, who have lived with their parents longer than any generation since World War Two, and whose attachment to careers are less stable, as the careers themselves are less stable, are considerably different than those for people who came of age in the 70s, when simply having a college degree meant while collar employment.
Experience, of course, counts, as we often here, but so does over experience. Staying in a place, including an occupation, too long will bring about some sort of stagnation. This is true in all things. Spots coaching, where a sort of rough rule of the jungle applies, provides an interesting example. Like the law, the occupation exist geared toward producing a definitive result, so perhaps it's analogous in more ways than one.
In the NFL, for example, the same being an institution which Americans regard as sacrosanct, the two oldest coaches are 70 years of age, before the ages all drop down to less than 65. The tenth-oldest coach is only 54. Only one MLB manager is over 70 years of age. The oldest NBA coach is 73, but in second position is one that's 65.
Another example might be the military, with it sometimes being noted that some aspects of the law are in fact substitutes for private warfare. For officers, the most analogous group, the following is provided:
CHAPTER 63—RETIREMENT FOR AGE
Sec.1251.Age 62: regular commissioned officers in grades below general and flag officer grades; exceptions.1252.Age 64: permanent professors at academies.1253.Age 64: regular commissioned officers in general and flag officer grades; exception.1263.Age 62: warrant officers..
62 years of age, with exceptions up to 64.
Finally, we might also wish to note, the cost of passing this amendment is opportunity costs, in terms of lost opportunities, for the profession. Recent appointees to the bench have been relatively young, often being in their 40s if in their 40s. These individuals will already occupy these positions for up to three decades, meaning that they will fill them to the exclusion of other, also qualified, individuals. While some may be great judges, we can never hope for that, and if most judges are adequate judges we are doing well. What we do know, however, is that some great judges will never get to be that, as their chance will be taken up by the aged. Lawyers who in their late 40s and early 50s still have a chance of being judges will lose that chance as occupants of the bench stay on, with everyone knowing that no matter how respected a lawyer may be, nobody is going to choose them for a judicial position after they are in their late 50s.
The one and only reason, therefore, to pass this amendment is the cost savings one noted by the State Bar, but that's a bad reason. It reduces this, like so many other things in American life, to dollars and cents to serve economic interests alone. The logical extension of it is simply to discourage retirement in general, something the larger American society in fact already does.
Vote no on Amendment B.
