'No need for octogenarians' on the bench, including those on the Supreme Court, Posner says

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Judge Richard Posner

Judge Richard Posner is 78 years old, according to Wikipedia, a source he has cited in his own opinions for the Chicago-based 7th U.S. Circuit Court of Appeals.

In a couple of years, Posner’s judicial career would be over if the position he takes in a Slate article were to come to fruition.

“I believe there should be mandatory retirement for all judges at a fixed age, probably 80,” Posner writes in the online debate with U.S. District Judge Jed Rakoff. And that retirement age should include justices on the U.S. Supreme Court, Posner says.

“There are loads of persons capable of distinction as Supreme Court justices; no need for octogenarians,” Posner says.

“While many judges and justices have performed OK in old age, I don’t think any of them improved with age, which means they could readily have been replaced with equally good or better judges,” Posner says.

There are 1.3 million lawyers in the United States, “an enormous pool” from which to choose, Posner says. Nor should lawyers be the only candidates. A brilliant businessman, politician or teacher might make an excellent justice or judge, as long as smart law clerks handle the technicalities, which are mostly “antiquated crap,” Posner says.

“Our current Supreme Court would be greatly improved,” Posner says, “if in lieu of the weaker justices” some nonlawyers took their place.

A constitutional amendment may not be needed for Congress to set a mandatory retirement age, Posner asserts.

“First of all,” Posner says, “I don’t think Article III’s reference to federal judges serving ‘during good Behaviour’ need be equated to life tenure. It may be read just to mean they can be fired at any age for bad performance. Thus interpreted, the Constitution (which is plastic) does not confer life tenure on federal judges.”

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