Judges, like boxers, are loath to give up the adulation that comes with the job, not to mention the pleasure of reducing others to a pulp. Recently Judge Smith of the Albany Supremes came out with an Op Ed piece in the Daily News urging Joe Sixpack and his consort to vote for a constitutional amendment allowing higher retirement ages for judges. You have to support old judges anyway, Smith argues engagingly, so they might as well be working instead of sitting around playing bingo.
Pitching to both sides of the street, Smith notes that Chief Justice Warren was 108 years old when he wrote Miranda v. Arizona, while Justice Scalia wrote his finest dissents after being cryogenically frozen in 1972. And if it weren’t for mandatory retirement – why, we could have had another 14 years of Judge Kaye!
Smith at oral argument is big on hypotheticals, a rhetorical device for scoring points by changing the subject. A typical Court of Appeals argument goes like this:
Lawyer: The police stopped my client without reasonable suspicion and asked him if he had anything up his ass. The gun should have been suppressed.
Judge Smith: Are you saying we should forbid the police to ask perfectly normal, innocuous questions? What if they needed to know what time it was? What if they needed directions to the nearest Dunkin Donuts? Are you saying the Court should hold that police can’t talk to citizens?
Lawyer: But –
Judge Graffeo: Were there children on the street?
Judge Smith: What if it were King Kong climbing up the Empire State Building? They couldn’t ask him for i.d.? What if the Pod People from Outer Space were standing on the street corner trying to take over the world? Wouldn’t the police be allowed to make reasonable inquiries?
Judge Pigott: In Buffalo we have Pod People everywhere.
Judge Smith: Counselor, you haven’t answered my hypothetical. What if Jack the Ripper were walking into a kindergarten?
Lawyer: [on the verge of tears] THAT’S NOT THIS CASE!
What if no judge, ever, ever, retired?