N.J. Constitutional Convention: Vol. 4, Page 734


(Excerpt from letter to President Robert C. Clothier, referred to the Committee on the Judiciary)

July 28, 1947

1. The tenure of the Supreme Court judges

I think that should be for "good behavior" (i.e., for life), instead of to terminate at the age of 70. There are two outstanding illustrations: first, in New York State all judicial terms expire at the age of 70 of the incumbents. The only real advantage of that is that it gives place to new men, but as against that there is the great disadvantage of terminating an incumbency generally at the height of the man's experience and capacity, and supplanting him with one who may have had little or no experience. On the other hand, the federal judiciary holds during good behavior, that is, for life, and that has with very few exceptions worked remarkably well, - an outstanding example perhaps being that of Justice Holmes, who was about 60 when appointed, and whose work after he was 70 was by far the most valuable of any man of his time, in many people's estimation. At any rate he showed no diminution of power whatever up to the time of his voluntary relinquishment. Then, too, if the judge is put out of office at the age of 70 he must try to find something to do in most cases. He has been out of practice for years, and his efforts to resume practice usually come to very little. Then, too, it makes for continuity in the court, to have the judges serve as long as they are able. The United States Supreme Court has had but 85 members in the 160 years of its existence. Some have served more than 30 years, and for more than two-thirds of its life the senior member has had 20 years or more of service. All this tends to give stability to the court. It seems to me that everything tends to support the view that the man of experience should be retained in judicial office as long as he is willing to serve. Usually those in poor health, or otherwise disqualified by advancing age, are content to retire voluntarily.

Sincerely,Drury W. Cooper

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