Law & Economics Working Papers
Lifetime tenure maximizes judicial independence by shielding judges from political pressures, but it creates problems of its own. As is widely known, judges with judicial independence may implement their political preferences or shirk in other ways. Less attention has been given to another problem: that judges will remain in office after their abilities degrade as a result of old age. The U.S. federal system addresses these problems in an indirect way. When judges' pensions vest, they receive a full salary regardless of whether they work or not; thus, the effective compensation for judicial work falls to zero. Judges can retire, receive their pension, and obtain paying work elsewhere. This approach limits some of the harmful effects of judicial independence by encouraging judges to vacate their offices when they reach a certain age, and by causing judges who lack talent, and therefore find their work burdensome, to self-select themselves out of office. But this solution is hardly perfect. Wealthier judges will be insulated from the financial incentives, and judges with strong partisan preferences can time their retirement for political purposes. We test the potential benefits and costs of this system using a database of federal district judges.
Eric Posner, G. Mitu Gulati & Stephen J. Choi, "The Law and Policy of Judicial Retirement" (John M. Olin Program in Law and Economics Working Paper No. 550, 2011).