Should New York abandon mandatory retirement for judges aged 70?

70 for the highest court, 76 for some lower courts. There's a proposal to change this:

Some within the state’s judicial ranks have questioned [the] bill, saying it unfairly favors the high-level judges on the State Supreme Court and the Court of Appeals. Others counter that forced retirement encourages diversity, as older, white judges retire and are replaced by younger ones from minority groups....

Assemblywoman Weinstein pointed to a case where a “very vibrant” jurist was forced off the bench: Judith S. Kaye, longtime chief judge of the Court of Appeals, who stepped down in 2008 after turning 70.

In an interview, Ms. Kaye said she agreed that the retirement requirement should be changed. “When the age was fixed at 70, we were at a time when it was really old,” Ms. Kaye said. “Today, people are still very sharp and able — they are not statutorily decrepit.”

It was sad to see Judge Kaye needing to retire, but there's something to be said for moving judges along and bringing new people in. Here's the U.S. Supreme Court opinion that interpreted the federal Age Discrimination in Employment Act not to cover state judges. The Court — composed, of course, of judges who themselves could not be forced to retire — noted the rational basis for age discrimination against judges:

The people... have a legitimate, indeed compelling, interest in maintaining a judiciary fully capable of performing the demanding tasks that judges must perform. It is an unfortunate fact of life that physical and mental capacity sometimes diminish with age... The people may therefore wish to replace some older judges. Voluntary retirement will not always be sufficient. Nor may impeachment — with its public humiliation and elaborate procedural machinery — serve acceptably the goal of a fully functioning judiciary.

The election process may also be inadequate. Whereas the electorate would be expected to discover if their governor or state legislator were not performing adequately and vote the official out of office, the same may not be true of judges. Most voters never observe state judges in action, nor read judicial opinions. State judges also serve longer terms of office than other public officials, making them — deliberately — less dependent on the will of the people....

This is also a rational explanation for the fact that state judges are subject to a mandatory retirement provision, while other state officials — whose performance is subject to greater public scrutiny, and who are subject to more standard elections — are not. Judges' general lack of accountability explains also the distinction between judges and other state employees, in whom a deterioration in performance is more readily discernible and who are more easily removed.

That was written by Sandra Day O'Connor — who retired from the U.S. Supreme Court, after 24 years, when she was 76.