Defying Maryland's age of 'constitutional senility,' a judge returns

People of a certain age will appreciate this: Charles G. "Chuck" Bernstein, who loved being a Baltimore circuit judge so much that he made a federal case out of his mandatory retirement at 70, appears to have been elected a judge again. If the tally from Tuesday's primary holds up, Bernstein will return to the bench at the age of 75.

He'll probably ride his bike to work, too.

The Orphans' Court of Baltimore City does not require its three judges to retire at a particular age. (It didn't even require a law degree until four years ago.)

So Bernstein, who went kicking and screaming off the Circuit Court bench in 2009, quietly entered the election for Orphans Court. And he appears to have quietly finished third in Tuesday's pick-three primary.

According to the Maryland Board of Elections, the leading vote-getter was Michele E. Loewenthal, with 28,799, followed by Lewyn Scott Garrett (24,932) and Bernstein (24,408). In fourth place is Stephan Fogleman, with 23,113. Absentee and provisional ballots have yet to be counted.

(It's foolish that we have to vote for Orphans' Court judges in Maryland. Registers of wills, clerks of courts, sheriffs, state's attorneys — they should all be appointed positions.)

As I say, if the tally holds up, Bernstein will take on another in a long line of public service jobs — and he'll get the last laugh, so to speak, over mandatory retirement at 70, what people in legal circles derisively call "the age of constitutional senility."

(Before we go on, I need to pull over and show you my columnist's license. The license allows me to exaggerate a little for provocative effect, and I just did. When I said Bernstein went "kicking and screaming off the bench," I made it sound like the bailiff had to physically remove the man. That didn't happen. Bernstein didn't kick and he didn't scream — that we know of. He merely filed suit in federal court. Now, back to the column, already in progress.)

What do they say? 75 is the new 65? 70 is the new 60? I've lost track of all the age realignments that have been declared since the first baby boomer hit 50 in 1996.

A lot of it is wishful thinking, of course, the assertions of an overly age-conscious generation. But a lot of it is real — the gift of modern medicine, affluence, decent health insurance and Oil of Olay. We're living longer, and people of a certain age know this to be true: You might live even longer if you stay active, in mind and body.

So a lot of boomers (and even pre-boomers, like Bernstein) laugh at 65, the golden goal line for their parents, and they keep working.

Of course, some don't retire because they can't afford to.

But a bunch don't retire because they don't want to.

Take Bernstein: Born in Baltimore when President Franklin Roosevelt was only in his second term, he grew up here, taught in the public schools for a few years, then went to the University of Maryland law school. He got his law degree, then took a job as an assistant state's attorney. After that, Bernstein became an assistant U.S. attorney.

When I first met him, in the 1970s, he was the federal public defender here, and one of his clients was a co-defendant in one of Maryland's biggest political corruption trials.

After that, Bernstein went into private practice for a long time. In 2006, he was appointed to the Baltimore Circuit Court.

Unfortunately, he had to retire when he turned 70, in December 2009, and Bernstein decided to challenge the requirement. He filed suit in U.S. District Court with a couple of interesting arguments, but he did not prevail. Maryland's "constitutional senility" stands.

(According to a Daily Record report from 2008, Chief Judge Robert Bell of the Maryland Court of Appeals took a jab at mandatory retirement as he bade farewell to another jurist who was about to turn 70. "The Constitution," Bell said, "regards her as senile." Judge Bell has since turned 70 and retired.)

Bernstein, meanwhile, went off to private practice with the law firm of Peter G. Angelos. He retired last year.

If Tuesday's tally stands, he will be a judge again in January, at age 75, though not in Circuit Court. The Orphans' Court judges resolve matters of probate — wills, estates, the distribution of assets of the deceased — and it's a part-time job that pays $74,000 annually.

"I loved being a judge, and I thought I was good at it," Bernstein says when I asked why he wanted to get back on a bench. "I love public service, and I had a lot of friends at the courthouse."

He says he's in good shape; he can do 30 to 50 miles at a time on his bicycle.

"I'm fine," he says. "And I'll be fine [as a judge again], as long as I don't have to find my car keys."

So ride the bike, your honor.

Dan Rodricks' column appears each Tuesday, Thursday and Sunday. He is the host of "Midday" on WYPR-FM.

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