Why judges hate the idea of retiring

Supreme Court Judges during the delivery of the judgment on the presidential election results petition at the Supreme Court in Nairobi on March 30, 2013. Article 62 of the independence Constitution, repealed by the current Constitution, provided for a judge to vacate office when he or she attained an age prescribed by Parliament. Parliament prescribed 74 years. PHOTO / SALATON NJAU 

In Summary

• Thurgood Marshall resisted the idea of retiring even though by the early 1990s his health was failing and he had problems with both his hearing and vision.
• Judges enjoy a powerful position in society. They have powers over our property rights, freedom, life and death. They do not want to lose that.

By Peter Mwaura
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US Chief Justice Charles Evans Hughes once said he found it “extraordinary how reluctant aged judges are to retire.” He should not have.

 

Judges the world over, like politicians, want to cling to their offices.

Another American judge, Richard Allan Posner, observes in his book, Aging and Old Age, that “the judiciary is the nation’s premier geriatric occupation.” It is, in fact, in the US that you find the oldest serving judges.

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This is because federal judges are appointed for life, and Article III of the US Constitution allows them to retain their offices as long as they maintain good behaviour.

The rules, however, allow a judge to choose to retire, beginning at age 65, at his or her current salary, or take senior status, after performing 15 years of active service.

Judges who take senior status continue hearing cases but on a reduced caseload basis.

But many judges refuse to retire even when it is obvious they are broken down by old age, illness or senility. William Rehnquist, who served as an associate justice of the US Supreme Court and was appointed chief justice in 1986, is a classic example.

He continued to work on cases up to 2005 even as he was dying of thyroid cancer.

Another example is Thurgood Marshall (who helped to draft Kenya’s independence Constitution). He resisted the idea of retiring even though by the early 1990s his health was failing and he had problems with both his hearing and vision. He finally agreed to retire in 1991 at the age of 82 but died one year later.

PSYCHOLOGICAL NEED TO STAY

But the oldest judge in US history was Wesley Brown. He continued to hear cases until his death in 2012 at the age of 104.

Other common law countries have mandatory retirement age for judges. In Canada it is 75, in Australia 72, in India 65 for a judge of the Supreme Court and 62 for a judge of the High Court judge.

In Kenya it is 70, as in the United Kingdom. However, article 62 of the independence Constitution, repealed by the current Constitution, provided for a judge to vacate office when he or she attained an age prescribed by Parliament. Parliament prescribed 74.

Leaving aside the current dispute as to whether judges appointed before the current Constitution should retire at 70 or 74, what are the reasons why judges everywhere want to cling to office?

Your guess is as good as mine. But I think there are a host of reasons. Judges enjoy a powerful position in society. They have powers over our property rights, freedom, life and death. They do not want to lose that.

Some have a great psychological need to stay on as they do not want to lose prestige.

Others suffer from incredible self-delusion, or they may think being a judge is the only thing they can do.

Some may even believe they are indispensable. Others, maybe, enjoy their job.

gigirimwaura@yahoo.com