N.J. Constitutional Convention: Vol. 4, Page 169

Wednesday, July 2, 1947 (Morning session)

greater trial lawyer. I saw the old man, when Leibowitz was firing those questions, say to the witness, "Do you mean to say this," or "you need not answer that question." And he brushed Mr. Leibowitz off in great shape, and that trial was over, justice was done and there was no appeal.

JUDGE BRENNAN: That is a single case. It may not be true, but it is the general picture I get, and it was demonstrated.

VICE-CHAIRMAN: I can give you another illustration which is outstanding in federal history. Judge Mack was an outstanding federal judge. His court was abolished, and as a result he had no court to preside over. Under federal practice, you may not retire a judge due to the fact that he has life tenure, but they made brilliant use of him. He was transferred from district to district throughout the country for at least ten years, and he sat on such cases as the Standard Oil anti-trust case in Massachusetts. You will see they made fine use of him even though he might have been considered in the nature of retired. His age, at the time he died, was well above the retirement age.

Following up your thought, even if you do have a so-called compulsory retirement age, you may make adequate provision for allowing the court to use these retired judges to the extent of their capacities.

MR. SMITH: Are there complications in the way of heartaches or headaches in cases of those retiring judges who are not called upon by, we will say, the Chief Justice, to serve?

VICE-CHAIRMAN: There haven't been thus far because, under our federal system we haven't had enough retirements. It has been only in recent times that there have been pressures to obtain retirements, and most of the judges have been retiring at such advanced ages that I don't think they have resented the fact that they haven't been called.

JUDGE BRENNAN: In your judgment, the leisure became no problem.

MR. SMITH: I would like to make myself clear. I don't oppose the suggestion. I just submit that if you had ten retired judges and two were being called upon for special service and eight were being ignored, there would be an implication that would be unpleasant.

MRS. MILLER: That is better than the other way around.

VICE-CHAIRMAN: That might be offensive to a certain individual but it wouldn't impair the judicial system.

MR. SMITH: That's right.

JUDGE BRENNAN: The life span is such that I think it would be unusual for a man much more than 70. We have lost two judges in the circuit this year, Judge Wolber and Judge Shay, neither having reached the age of 65.

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