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Ronald Reagan, he had sided with the liberal wing of the court on certain
issues and thus was seen as a crucial swing vote.
Should we regard with sympathy the position of Kennedy and other justices
caught in a situation where one contingent wants the judge’s expedited
departure to free up room for a replacement, and the other wishes to ward
off the point at which a replacement must be chosen? Or should we recognize
that this ability to select a time to leave the court gives the judge a certain
power that he or she may want, whether we regard the exercise of that
power with either admiration or dread (depending on how closely the political
affiliation of the judge, if any, might match our own)?
From the sympathetic standpoint, it seems like tough luck to need (or be
pressured) to subjugate to larger interests a decision about the timing of
retirement, which might in ordinary circumstances turn on personal considerations
such as family and health, or a desire to pursue outside interests.
Justice Kennedy had already served on the U.S. Supreme Court for 30
years, and for 13 years before that elsewhere in the federal judiciary. Is
there not a point where a judge deserves time off, without being pushed to
stay? Indeed, had Kennedy stayed, it is not as though he would have
escaped criticism the next time he sided with conservatives on the court or
if he later tried to wait out a president who was a Democrat and who might
nominate a liberal judicial successor. With respect to the decision he ultimately
made, suddenly the judgment that Kennedy was lauded for exercising
well (when siding with those of more liberal bent in court decisions) is
presumed not to have been well exercised at all.
Mandatory retirement at least takes away the pressure on judges to stay
once at the age limit that is prescribed—the judge no longer has the burden
of choosing; he or she is no longer eligible to be called upon to assist by
sticking it out even where he or she might otherwise have preferred to
leave. Of course, mandatory retirement has its dangers and disadvantages,
including the exclusion of otherwise qualified individuals from becoming
or remaining judges, and potential political manipulation when the age
limit is imposed or adjusted downward during the term of sitting judges.
Witness the situation in Poland, where the government reduced the mandatory
retirement age of Supreme Court judges from 70 to 65, thereby ousting
up to one third of sitting Supreme Court judges and giving the government
the ability to appoint its own favoured replacements. However, where not
aimed at sitting judges, mandatory retirement might at least reduce the
speculation and spectacle that accompanied the Kennedy process.
All this said, should we be feeling this solicitous toward Kennedy and colleagues
who find themselves needing to decide what to do? Perhaps they