On the surface, Proposition 6 is straightforward enough: It would raise the mandatory retirement age for State Supreme Court justices and Court of Appeals judges to 80. Currently, the State Supreme Court, a trial-level court, requires justices to leave at age 76; the Court of Appeals, the state’s highest court, has a cutoff at 70. If passed, extra judges would be available to ease overcrowded courts.
But nothing in the politics of the judiciary is ever simple.
Chief Judge Jonathan Lippman has argued forcefully and repeatedly that the measure, which amends the state’s Constitution, redresses a fundamental injustice. Judges are the only state officials forced to retire at age 70.
That rule is out of date, Judge Lippman says, enacted just after the Civil War, long before the age of modern medicine, when merely living to 65 was considered a feat. The age limit has deprived the New York courts of great legal minds in their prime, he says, among them former Chief Judge Judith Kaye.
“It’s an anachronism in the year 2013 to have a constitutional presumption of senility at age 70,” Judge Lippman said in an interview. “To me, it’s bad public policy. It’s bad for the courts. It’s bad for the public to make experienced judges leave the bench when they are at the top of their game.”
By allowing State Supreme Court justices to serve longer, the measure would also give Judge Lippman an extra 20 to 28 older but presumably sharp judges to deploy, and he has pledged to send them to clogged lower tribunals like Family Court and Criminal Court.
Mr. Cuomo has been careful not to take a strong public position, but some of the actions he has taken show that he is clearly opposed to it. “It’s not my referendum,” he said last week when asked where he stood. “I wasn’t involved in it. I understand the issue. I think there are serious questions raised by it.”
But quietly the governor worked to scuttle the bill at the end of the legislative session, putting pressure on Senate leaders during the last week in a failed bid to keep the bill from coming to a vote, according to legislative aides who spoke on the condition of anonymity because they feared political reprisals from Mr. Cuomo. Matt Wing, a Cuomo spokesman, denied that the governor tried to kill the bill.
“The governor continues to have reservations about the proposition, but he has not taken an official position,” Mr. Wing said.
Senator Jeff Klein, a Democrat and co-majority leader, said on Wednesday that he was not lobbied directly by the governor, nor by Mr. Cuomo’s staff, to keep the bill from coming to a vote.
But Scott Reif, a spokesman for Senator Dean G. Skelos, the Republican co-majority leader, said “there was a healthy dialogue” with the governor’s office, but declined to give details.
Opponents of the proposal characterize it as a flawed half-measure. It leaves out lower-court judges, who make up about three-quarters of the 1,259 jurists in the state. These judges would still be compelled to step down at 70, yet they are the ones burdened with mountainous caseloads and backlogs.
“There is no principled reason to raise the retirement age for some judges and not all,” said Dick Dadey, executive director of Citizens Union, which opposes the initiative. “The caseload problem is really in the lower courts and in the family court.”
That failure to extend the careers of lower-court judges is something that Mr. Cuomo has seized on in the last two weeks, as he lobbies editorial boards to oppose the amendment. Another issue for Mr. Cuomo is that if the proposition passes, it will allow two Republican judges to serve longer terms, limiting his ability to put a lasting liberal stamp on the Court of Appeals.
This year, Mr. Cuomo appointed two relatively young, liberal judges: Jenny Rivera and Sheila Abdus-Salaam. Judge Rivera can serve until 2027, Judge Abdus-Salaam until 2022.
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