Raising retirement age of judges could fix judicial vacancy crisis, lawmaker says

A state legislator wants to bump the mandatory retirement age for New Jersey judges from 70 to 75 to reduce a crippling shortage of judges.

The judiciary has so many vacancies that 77 retired or former Superior Court judges have been called back into temporary service to help clear a backlog — created by both the vacancies and the pandemic — of tens of thousands of cases, courts spokeswoman Mary Ann Spoto said.

Sen. Shirley Turner (D-Mercer) introduced a bill last month that would raise the retirement age for state Supreme Court justices and Superior Court, Tax Court, Administrative Law, and Workers’ Compensation judges. The dozens of recalled judges show the current mandatory retirement age — written into the state constitution in 1947 — is too low, Turner said.

“If we’re bringing them back after the age of 70, why are we forcing them to retire at the age of 70? That doesn’t really make sense,” said Sen. Shirley Turner (D-Mercer).

The courts now have 65 vacancies in the trial and appellate divisions, not much lower than the record-high 75 empty seats that prompted state Supreme Court Chief Justice Stuart Rabner to issue a public plea for relief last May. At least one more vacancy is expected by Feb. 1, Spoto said.

Gov. Phil Murphy nominates judges, who then face a lengthy process of interviews and Senate votes before they are confirmed for the bench. But Murphy hasn’t been as prolific as his predecessors in nominating potential judges, and senators have stalled on some nominees, thanks to an unwritten rule known as “senatorial courtesy” that allows them to indefinitely block nominees from their home counties or districts.

“We’re so slow in filling these vacancies. And I’ve been having complaints from constituents who can’t have their cases heard because of the backlog. Justice delayed is justice denied,” Turner said. “So we need to do more in the way of keeping the judges who are currently serving there longer.”

Turner worries the vacancies and the backlog they feed will fuel burnout — and early retirement — among the 398 current Superior Court judges.

Legislators and other state leaders have no mandatory retirement age, Turner pointed out. And life expectancy has grown by about 10 years in the seven decades since New Jersey’s mandatory retirement age for judges was set, she added.

“As they say, 70 is the new 60,” she said.

Tweaking the judicial retirement age would require voter approval in addition to legislation, because it’s enshrined in the state constitution and would require a constitutional amendment.

But Turner thinks it’s worth the effort. Besides reducing vacancies, raising the retirement age would also benefit the state’s woefully underfunded pension system, she said.

“The judicial pension fund is one of the weakest of all the pensions, because they receive three-quarters of their salary once they retire, and no other pension is that generous,” Turner said. “The longer we can keep them on the court, the longer they pay into that pension fund and not withdraw money from it.”

Turner was behind a 2012 effort to get judges to contribute more to the pension system. That also required — and received — voter approval.

A recent retiree weighs in

Federal judges are appointed for life and have no mandatory retirement age. Nineteen states don’t set judicial retirement ages, while 30 others and the District of Columbia require judges to retire between 70 to 75, with outlier Vermont mandating retirement by 90, according to 2019 data from the National Center for State Courts. Wyoming voters rejected a referendum in November to boost the judicial retirement age there to 75.

Barry Albin, who served on the state Supreme Court for 20 years before he retired last summer at 70, agreed raising the retirement age is “worthy of discussion.”

“Many of the people who are required to retire at the age of 70 still have a lot of gas in their tank, and they can be serving ably at age 75 and beyond,” he said.

If there’d been no mandatory retirement age, he said, he likely would have stayed on the Supreme Court “as a matter of duty.” He continues to work full time now, chairing the appellate practice group at the Roseland-based law firm Lowenstein Sandler.

Still, Albin said, he thinks term limits are as discussion-worthy as retirement mandates.

“You want to ensure a certain amount of turnover and getting fresh blood into the system,” he added.

Albin said recalling judges should be “a temporary expedient” and won’t sufficiently reduce a case backlog he called “really intolerable.”

Lifting the retirement age won’t solve the judicial vacancy crisis either, he said. Legislators and the governor must act, he added.

“Raising the age is not the quick fix for the current number of judicial vacancies,” he said. “There is a lack of action by the political branches of government. They have an obligation to make appointments, and they’re not doing it. There’s really no excuse for the political branches of government not ensuring that the judiciary has a full complement of judges. That is the crux of the problem.”