On Saturday, March 31, 2007, the House of Delegates of the New York State Bar Association officially approved the recommendation of the NYSBA Task Force on the Mandatory Retirement of Judges that “all state judge . . . be allowed to serve to age 76, subject to the two-year certification process currently in place for Supreme Court Justices with certification beginning at age 70 and service until age 76.” However, while the Task Force recommended that the judges of Court of Appeals (the State’s highest court) be exempted from the fitness certification requirement, the Delegates insisted “that a process be established for certification of Court of Appeals judges at two-year intervals after age 70.” (see update posting, April 4, 2007)
The approved Resolution quoted from the Task Force’s March 2007 Report:
“mandatory retirement of judges deprives the courts and the people of New York of experienced and productive individuals and discourages otherwise qualified and experienced judicial candidates from seeking judicial offices. . . “
The Report gave this reasoning for excluding the Court of Appeals from the fitness certification requirement:
It is important to note, however, that judges of the Court of Appeals are not required to seek certification. The Task Force felt that this unique, seven-member judicial body should be treated differently. Typically, appointments to this bench come later in an attorney’s career. The competence, temperament, and skills of the judges are widely known to the profession, and certification for the purpose of determining whether a judge is competent to remain on the bench is unnecessary at this highly visible judicial level. Moreover, it is the opinion of the Task Force that the collegial and intimate nature of the Court of Appeals makes it amenable to self-monitoring.
If you’re like me, you might be excused for finding the reasons given as quite weak, while wondering about the real motives. Apparently, the members of NYSBA’s House of Delegates were also left unpersuaded that the most visible and powerful judges in the state did not need to be within the certification program. Perhaps they were familiar with the book Leaving the Bench: Supreme Court Justices at the End (2000; reviewed here), by David N. Atkinson. Leaving the Bench gives example after example of justice of the U.S. Supreme Court who stayed on despite becoming unfit to serve due to mental and physical infirmities.
As suggested in the posting on ethics and the Graying of the Bar, I am not sure that we can count on a Certification process to be evenhanded and effective. This may be just my natural skepticism of government bureaucracies of every sort here in New York State. Note that the Task Force Report states, citing statistics from the NY Office of Court Administration, that “Since 1997, over 150 [Justices of the Supreme Court] have been certificated or re-certificated; only nine have been denied certification in this time period.” I do not know whether this speaks to the general fitness of the septuagenarian judges who appliced for Certification, or to the generosity of the evaluators. I would very much like to hear from other about the workings of the OCA Certification process.
Let’s, perhaps, change the subject: a few poems from Baseball Haiku (2007):
spring training
an old timer plays pepper
with three rookies
……………………….. by Cor van den Heuvel – Baseball Haiku
orig. pub. ModerneHaiku 34:2
extra innings
a runner’s shadow
down the third base line………………………. by John Stevenson – orig. pub. Past Times (Red Moon Press)
summer loneliness . . .
dropping the pop up
i toss to myself
……………………….. by ed markowski – orig. pub. Pop-Up (tribe press)
And, a few more from the f/k/a Baseball Haiku Page
retired Reds scout –
still eyeing the field
through dark glasses
my nephew’s fastball –
I hand back his glove
and keep the sting
………………………………… by Barry George
“retired Reds scout” – Mayfly #23;
“my nephew’s fastball” – bottle rockets #11
51 candles
&
still this wish
to
pitch in yankee
stadium
……… by ed markowski
sting
of the old man’s
fastball
,,,,,,,,,,,,,,,,,, by John Stevenson – Upstate Dim Sum (2005/II)