N.J. Constitutional Convention: Vol. 4, Page 135

Tuesday, July 1, 1947 (Afternoon session)

retired or died. Justice Katzenbach died, Justice Kalisch died, Justice Black retired, so that, had the situation been existing then, as now, it would have taken but a year and two months for the number to have been reduced from the ten to the constitutional quota of seven. Starting now and looking back, Justice Oliphant took office May 21, 1945; Justice Wachenfeld took office on March 25, 1946; Justice Eastwood took office October 15, 1946; Justice Burling took office sometime in 1947, so that in less than two years there have been four - a man had to drop out when a new man was appointed - there have been four withdrawals from the ten. That is all on the question of whether the court work would be seriously retarded by having, for a short time, a few additional men beyond the seven.

We assume you will have in this Constitution a retirement age; possibly a permissible retirement age, say at 70, and a compulsory retirement age, such as was provided for in the 1944 Constitution, at 75. There is a little confusion - I think there must have been some clerical slip-up - in some of the provisions of the proposed 1944 Constitution in that respect, because in one place it seems to anticipate that the compulsory retirement would be at 70; and in one or two other places, at 75. I think the conclusion they arrived at was at the age of 75, and it was not changed in all instances. Well, of the ten men we are talking about, one member, as you may know, is already well past the age of 75, and there is another member who is within a couple of years of that age, and still another member, speaking of myself, who - well, I'm still on the sunny side of 70 - but in five years and a few months, I shall be 75, too. And there are bound to be other changes, so that you would be sure, in a very short time, to get down to your seven.

MR. EDWARD A. McGRATH: Do you mean the 75-year limit should not apply to those in office now?

CHIEF JUSTICE CASE: Judge, my experiences have led me to think that a certain age may reasonably be fixed, beyond which a man should retire. The lack of an age limit sometimes works to the disadvantage of the court. We all remember, doubtless, some instances in which men did some of their best work on the court when they were past 75 years of age. One great old man was on his court until he was 90 - Justice Holmes, who shone long after 75. Chief Justice Hughes was there until nearly 80, and his withdrawal, I think, was due to his own desires and not to weakening of his powers. In our own court, Chief Justice Gummere did not begin to manifest any failing in his powers until he was, I think, 80. But it does seem as though some age might be fixed. I don't think it should be compulsory under 75. The fact is that men, as a rule, don't get on the court until they are middle-aged.

MR. McGRATH: You would make it 75 for any retirement and

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