Why you should care

Grandparents don’t tweet, so can they judge — literally — someone who does?

You’ve been caught smoking weed, not in Colorado, and now it’s judgment day. The arbiter of your fate is a white-haired, elderly man. He throws the book at you, scolding you as though you were a child: “Your generation needs to get it together,” he intones, slamming the gavel.

Nobody said life is fair, but here’s a fair question: Why are so many judges so old? Here’s another: Should they be?

Conventional wisdom has it that wielding the gavel takes years upon years of lawyerly practice. Judging by that standard, the U.S. federal bench must be very effective, indeed: About 12 percent of the nation’s 1,200 federal judges are 80 or older, according to a 2010 survey by ProPublica. Eleven were over the age of 90, almost three times as many 20 years before. Other things that happened over those 20 years: the Internet. Plus smartphones, Twitter, Facebook, hacking, legal weed, etc., etc., etc. Plus dementia and senility, for some. On issues of the day, like privacy or hacking, can older judges possibly keep up?

Why wouldn’t a few years of such intensive training compensate for the absence of life years?

Unsurprisingly, the judges themselves have excellent arguments why age rules. Richard Posner, a relatively spry 76, argues that it has to do with the American common law system, which is based on precedent: “The more a judicial system adheres to stare decisis (precedent), the older its judges will be on average,” he writes in his book Aging and Old Age. Judge Posner may well be right — we don’t much want to get into an argument with a man who’s been throwing down from the 7th Circuit since we were a fetus — but we must point out another, far more prosaic reason our federal judiciary is so old: Federal judges have lifetime tenure. And in jurisdictions where judges face mandatory retirement at, say, 70, they’ve mounted campaigns to raise the limit to 80, citing their experience and a huge case backlog.

But why not have younger judges fill the gap? For years, in jurisdictions from India to France to Brazil, you could go straight from law school to a judgeship. Pass the judge test? You’re in. In Brazil, for example, meeting a 20-something judge in the streets at Carnaval is still not particularly remarkable. We couldn’t say the same for most of our bench, save for, of course, the Notorious R.B.G. It’s true that in civil law countries, judges need not have years of experience in case law to draw an informed decision — they just consult the legal code. But even so, it’s worth remembering that even in our common-law system, clerks — recently graduated from law school — draft opinions. Why wouldn’t a few years of such intensive training compensate for the absence of life years?

Would younger judges be better? Emanuel Bonfim, a Brazilian magistrate judge, says young blood “oxygenizes the system and lends a multigenerational dynamism to the judiciary.” He should know: He became a judge at just 23. Today, he’s the president of the association of magistrate judges of the state of Pernambuco at 46, an age that he points out “would only mark the beginning of a judicial career in the U.S.” In countries dogged by corruption like Brazil, young judges might offer another benefit: Ostensibly, they’re more independent.

Nevertheless, Brazilian law is beginning to move in a decidedly more American direction. A few years ago, it required judges to have at least three years of practice, and a controversial proposal would require them to be at least 30. A separate debate roils in Brazil that sounds pretty American: increase the mandatory retirement age to 75? In both common and civil law countries, it seems like even judges want to stay forever young.

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