{"id":7441,"date":"2007-04-04T00:14:27","date_gmt":"2007-04-04T05:14:27","guid":{"rendered":"http:\/\/blogs.law.harvard.edu\/ethicalesq\/2007\/04\/04\/more-on-over-70-certification-for-"},"modified":"2011-08-05T14:53:51","modified_gmt":"2011-08-05T18:53:51","slug":"more-on-over-70-certification-for-nys-highest-judges","status":"publish","type":"post","link":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/2007\/04\/04\/more-on-over-70-certification-for-nys-highest-judges\/","title":{"rendered":"more on over-70 certification for NY’s highest judges"},"content":{"rendered":"

\"umpireS\"<\/font><\/span>\u00a0\u00a0New York Law Journal<\/em>\u00a0has a bit of background on the decision of the New York State Bar Association to call for fitness certification of Court of Appeals judges after they reach 70 years of age.\u00a0 “N.Y. Bar Delegates Approve of Certification for Judges<\/a>,” by Joel Stashenko, April 4, 2007.\u00a0\u00a0 As we\u00a0discussed two days ago (prior post<\/a>), the NYSBA\u00a0Task Force on the Mandatory Retirement of Judges had\u00a0called for raising the mandatory retirement age of all NYS judges to 76, with fitness certification every two years after age 70, for all judges, except<\/em> those on the highest court.\u00a0\u00a0The NYSBA House of Delegates disagreed on the exemption for Court of Appeals\u00a0judges.\u00a0The NYLJ<\/em> article notes that former chief state administrative judge E. Leo Milonas, who chaired the judicial retirement committee argued:<\/p>\n

“that recertification is not necessary for Court of Appeals judges because they are the most scrutinized and ‘self-monitoring’ in the sense that fellow judges would insist their colleagues step down if they are no longer able to handle the work.”<\/p><\/blockquote>\n

The article continues, however, that “Roger B. Adler<\/a> of Manhattan was among several delegates questioning why the court’s members should get a special ‘carve-out’ while other state court judges would not.” Adler\u00a0said the exemption would suggest “elitism” to the public.\u00a0 That’s right, but Adler argued further:<\/p>\n

\u00a0\"fencePainterS\"\u00a0\u00a0 “It is a court and not a club.\u00a0 It is inappropriate for members of the court, a closed, collegial body, to informally police sensitive issues amongst its membership.”<\/p><\/blockquote>\n

While I strongly agree, for reasons stated in the prior post<\/a>, that there should not be an exception for the Court of Appeals judges (e.g.,<\/em> see the dismal record of hanging-on long past dotage on the U.S. Supreme Court described in\u00a0Leaving the Bench: Supreme Court Justices at the End<\/font><\/em><\/a>, by David N. Atkinson (2002), Adler’s notion that it is not the business of other judges to urge unfit brethren to leave the bench is ridiculous.\u00a0 As discussed at length in\u00a0my ethics and the Graying of the Bar<\/font><\/a>\u00a0essay (March 20, 2007), lawyers and judges have an ethical\u00a0obligation<\/em> to assure that their colleagues on the bench and at the bar are fit to perform competently and diligently — no matter how awkward or sensitive the task may be.\u00a0 The most likely and appropriate people to offer thoughtful, compassionate, first-line intervention are those who work with a judge or lawyer.\u00a0\u00a0<\/p>\n

\"umpireS\"<\/font><\/span>\u00a0 Yes, we need biennial fitness certification of aged judges — even (and especially) the most powerful judges on the highest courts.\u00a0 But, it is irresponsible and unethical to delegate total responsibility for “quality assurance” in the judiciary to the bureaucratic process.\u00a0 One good reason, if we need one beyond our responsibility to clients, parties, profession,\u00a0and the public, is the fact noted in the Retirement Task Force report: \u201cSince 1997, over 150 [Justices of the Supreme Court]\u00a0have been certificated or re-certificated; only nine have been denied certification in this time period.\u201d\u00a0\u00a0 We cannot build a certification process that is free of politics and personal favoritism (and fear). Collegiality<\/p><\/blockquote>\n

As the NYLJ<\/em> article notes, and we reported<\/a> in full two days ago (decrying the lack of attention to competence issues and ethical responsibilities), the House of Delegates also approved a report by the Special Committee on Age Discrimination in the Profession<\/font><\/a> (Jan. 2007, 44-pp pdf.) which calls on law firms to end the practice of mandatory retirement for older lawyers, and to instead “show flexibility in hours and work assignments for older lawyers who want to keep practicing.”<\/p>\n

\u00a0<\/p>\n","protected":false},"excerpt":{"rendered":"

\u00a0\u00a0New York Law Journal\u00a0has a bit of background on the decision of the New York State Bar Association to call for fitness certification of Court of Appeals judges after they reach 70 years of age.\u00a0 “N.Y. Bar Delegates Approve of Certification for Judges,” by Joel Stashenko, April 4, 2007.\u00a0\u00a0 As we\u00a0discussed two days ago (prior […]<\/p>\n","protected":false},"author":94,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_feature_clip_id":0,"_jetpack_memberships_contains_paid_content":false,"footnotes":"","jetpack_publicize_message":"","jetpack_publicize_feature_enabled":true,"jetpack_social_post_already_shared":false,"jetpack_social_options":{"image_generator_settings":{"template":"highway","default_image_id":0,"font":"","enabled":false},"version":2},"jetpack_post_was_ever_published":false},"categories":[3513,900],"tags":[],"class_list":["post-7441","post","type-post","status-publish","format-standard","hentry","category-lawyer-news-or-ethics","category-viewpoint"],"jetpack_publicize_connections":[],"jetpack_sharing_enabled":true,"jetpack_shortlink":"https:\/\/wp.me\/p6kP1R-1W1","jetpack_featured_media_url":"","_links":{"self":[{"href":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/wp-json\/wp\/v2\/posts\/7441","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/wp-json\/wp\/v2\/users\/94"}],"replies":[{"embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/wp-json\/wp\/v2\/comments?post=7441"}],"version-history":[{"count":1,"href":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/wp-json\/wp\/v2\/posts\/7441\/revisions"}],"predecessor-version":[{"id":12574,"href":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/wp-json\/wp\/v2\/posts\/7441\/revisions\/12574"}],"wp:attachment":[{"href":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/wp-json\/wp\/v2\/media?parent=7441"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/wp-json\/wp\/v2\/categories?post=7441"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/wp-json\/wp\/v2\/tags?post=7441"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}