Gov. Phil Murphy said he will think about increasing the mandatory retirement age of New Jersey judges beyond the age of 70.
“You do have the reality. You’ve got a 78-year-old president who succeeded a 74-year-old president, so this is not a blip anymore,” Murphy said in response to an inquiry from the New Jersey Globe on Friday.
When New Jersey approved a new State Constitution in 1947 that forced judges to retire at 70, the average life expectancy of men in the United States – there was only one woman on the bench at the time, Libby Bernstein Sachar in Union County – was 62.
Nearly 75 years later, that number has increased to between 78 and 81, according to the U.S. Department of Health and Human Services.
“It’s a fair question, but I don’t have a specific answer to it because I haven’t given it thought.” Murphy said. “I’d love to noodle on it.”
Senate Judiciary Committee Chairman Nicholas Scutari indicated a willingness to look at the issue.
“There’s definitely a possibility to elongate that,” Scutari said of a constitutional amendment to raise the judicial retirement age. “I’ve been noodling around with that myself.”
While the retirement age is mandated by the constitution, the reality is the age limit is fungible.
Dozens of judges over age 70 are brought back into service each year to help the court manage a burgeoning caseload. But even those judges, who earn a per diem paycheck in addition to their pension, can’t work past age 80.
Retired Superior Court Judge Martin A. Herman was 47 when Gov. Thomas Kean nominated him to the Superior Court in 1986. He officially retired in 2004, when he was 65, but remained on the bench until his second retirement in 2019 at age 80.
“I would think that the change of mandatory retirement of 70 is worth some consideration,” said Herman, a former six-term Democratic assemblyman from Gloucester County. “Based on advances in medical science, 70 is about five years too low.”
Herman said he would have served past 80 if they system allowed.
“When you get past 65, they ask you two questions: can you hear and can you see,” Herman joked.
Legislation sponsored by Assemblywoman Holly Schepisi (R-River Vale) to allow judges to remain eligible for recall duties was approved the Assembly Judiciary Committee in 2014, but never received floor consideration.
Murphy had a chance to nominate an Associate Justice to the New Jersey Supreme Court in 2020 when Walter F. Timpone reached the mandatory retirement age of 70.
Age was a factor in the decision to nominate 39-year-old former federal prosecutor Fabiana Pierre-Louis, who could potentially serve on the bench until 2050.
The winner of the upcoming gubernatorial election will nominate a majority of the seats on the seven-member Supreme Court with four justices turning 70 between 2022 and 2024.