Statutory senility is clearly a demented policy

Saturday, 10th July 2010

US Supreme Court Justice Stevens illustrates why Australians should not discriminate against the elderly, says John Heard

Even when Justice Stevens’ politics divided him from his conservative patrons (Presidents Nixon and Ford), they defended their pick. Indeed, Ford maintained that Stevens’ was the ‘finest legal mind I could find’ and those who disagreed with Stevens’ opinions could usually discern the precision and elegance of his reasoning. No one has ever accused him of putting the US in jeopardy. He has chosen the moment of his retirement.

Of course, less-than-spry judges should be allowed to retire. Still others will prefer to hold on until stumps, long after their mental abilities have left for the pavilion, and provision should be made for that too. However, as long as care is taken to accommodate aging bodies, and to sharpen aged minds, the finest legal talent should find security of tenure on our federal benches.

Not least because constitutional provisions that limit judicial tenure are inherently destabilising. They favour short-term thinking and encourage politicking from the bench. Certainly, wherever imposed, statutory senility militates against a Burkean conservative preference for institutional memory and enduring, legal, order. It limits public service for no good reason and deprives the nation of excellent judges.

Forced retirement is also an expression of the revolutionary’s aversion to memory and the Modern’s fear of old age. It is a cynical, unworthy instrument, used to deprive ‘grave men, near death, who see with blinding sight’ of their final, deserved dominion.