Wisdom of age still needed on court

By Keith Uhl

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By application of Iowa Code 46.14.1, any individual who was born before Jan. 1, 1950, is not eligible to even apply for the vacancies on the Iowa Supreme Court.

That section states, regarding the qualifications for any judge in Iowa, including a Supreme Court justice, that the individual “ ... shall be of such age that they will be able to serve an initial and one regular term of office to which they are nominated before reaching the age of seventy-two years.” The State Constitution does not include this additional age requirement language.

By statute then, effectively as to this round of Supreme Court appointments, to meet requirements and still be younger than 72 after initial retention vote in the next election (2012) and then full eight-year term, anyone born before Jan. 1, 1950, is ineligible for consideration to be a judge.

All experienced lawyers in their early 60s or older are eliminated, not even able to apply. Even certain members presently serving on the Court of Appeals can't even “qualify” to be on Supreme Court. One of the finalists for the latest Supreme Court consideration in 2008 is now age ineligible.

What a waste of talent and experience, particularly when the confidence in the Iowa Supreme Court is so weak, or any time for that matter.

Age restrictions on judges should be viewed with skepticism. The age qualification requirement is discriminatory - a practice of excluding applicants for hire or promotion based on the age of the individual. The age qualification requirement takes the focus off skill levels and competency and places emphasis on the calendar age of the individual.

There is no rational basis for this age requirement here. And even if this archaic mandate could survive an equal protection rational basis or strict scrutiny test, we need the experience of those excluded to help restore confidence in the court and deliver justice for Iowans.

The exclusion sends a broader message about failing to use experience and wisdom in Iowa. In an era of a youth brain drain in Iowa, we should not worsen and further restrict our talent pool in any fields by eliminating those with experience.

Ironically, in most general employment situations, even asking an applicant's age is prohibited. But to be considered for an Iowa judgeship, the age requirement is an absolute precondition to qualify.

The U.S. Supreme Court has held entire interview processes void and mandated different hiring decisions.

Could this age disqualifier and resulting shrunken talent pool, in addition to invalidating the selection process, also lead to collateral attacks on opinions from a court wrongly tainted in its composition because the acts of a judge who is constitutionally disqualified may be considered void? Davis v. State, 956 S.W. 2d 555, 558-59 (1997)

These issues can and should be immediately addressed and resolved. The remedy, however, does not lie in protracted litigation adding to the rash of lawsuits now arising such as “two sided” ballots or questioning input from lawyers who see the applicants most often and know their temperament, and knowledge of the law much better than those using attacks on the court for personal political fodder and gain.

As the age restriction is not in the Iowa Constitution, an amendment to eliminate the restrictive requirement could be drafted by the Legislative Service Bureau and be ready for consideration and passage immediately in the new legislative session. This should be a first order of business.

In all fields, the wisdom and experience of our citizens should be recognized and welcomed in Iowa, not rejected.

Keith Uhl of Des Moines is a former First Assistant U.S. Attorney who has practiced law in Iowa and the federal courts since 1972. Comments: uhllaw@aol.com.