Retired and Working
Kerans, Roger Philip, Journal of Appellate Practice and Process
I retired from the Bench at sixty-three, after ten years as a trial judge and seventeen as an appeal judge. In Canada, judges are appointed for "life," which constitutionally ends at age 75. So why quit twelve years before I was required to do so? Therein lies a tale.
When we were young, my law partner and I decided that a stimulating lifestyle requires a career change every decade or so, and we both tried to do that. He did it by moving in and out of politics, but that was not for me. Because I had started my career as trial judge with the District Court and Queen's Bench in Alberta, the move from trial to appeal work when I was appointed to the Court of Appeal was like a career change for me, and I found both careers stimulating. But after seventeen years as an appeal judge, I was finding little in the way of new challenges. And it was learning as much as we could from new challenges to which my partner and I had committed ourselves long before.
I confess that I hesitated to consider any form of a retirement career. To return to a lawyer's career or to move to a different career after retirement would be to buck a strong tradition, one that held sway through generations for Canadian and British judges. Followed throughout the British Commonwealth, that limiting tradition was expressed this way by an Irish Court: "[W]ith security of tenure and fixed and adequate remuneration and pension, the practice of the profession of the law is abandoned [forever] by the person appointed." (1) Although it is in form addressed only to the situation of the judge who considers a return to the practice of law, the spirit of that decision would apply to his taking up any remunerated activity. And so it was in Canada: The Canadian tradition was that a retired judge grew roses, and little else.
Times change. Canadian judges do not continue to sit into their nineties today, as they did in my youth. When the Canadian constitution was amended in 1958 to require judges to leave the bench at seventy-five, that age was widely accepted as a fair line to draw between competence and senility. Fifty years later, better health has produced improved longevity, and many judges are keen to work after seventy-five. Moreover, Canadians have accepted the idea of burnout, and now permit judges who are as young as sixty-five to retire. It seems inevitable, then, that judges will increasingly plan to have post-retirement careers. This will raise many interesting issues, but I will address here only those that I encountered.
I had a good pension upon retirement, and was not uncomfortable, but having lived on a judge's salary since age thirty-six, I was certainly not rich. I decided in consequence that I should plan on a second career, and I started by trying to make a list of the activities that I would find most stimulating and for which I had some merchantable skills. Outside the law, it was an embarrassingly short list. Inside the law, and mindful of tradition, I thought of teaching and writing. I got into both, and enjoyed them, but they had limits.
When I started teaching, I immediately ran into the restraints any well-run law school would impose. I suppose they were all reasonable, but they were not for me. I did not want to move out of one institutional box into another. Writing, on the other hand, was fun. Not well paid, but fun. I wrote mostly about legal and judicial issues for the Comment page in newspapers. (2) I soon learned that the content would before very long become thin indeed if I was to keep this up on a regular basis, which was a daunting thought for me after years of mocking hack journalism and complaining about columnists who continue writing when they have nothing to say. I stuck it out for about three years, but then I realized that it was time to move on, although I keep my hand in still. (3)
Just before I retired, I had asked a lawyer friend for advice about a second career, and he immediately offered me a position at his large and successful firm. …