Vote 'Yes': Fitness to serve, not age, is key qualification for judges

CONSTITUTIONAL AMENDMENT:
BALLOT QUESTION 3

On Election Day, voters will be asked to vote "yes" or "no" on Constitutional Amendment 3, which reads: "Shall the mandatory retirement age of seventy for all state court justices and judges be repealed?"

Attorney General Mark Bennett and AARP Hawaii director Stuart T.K. Ho argue the pros and cons in essays below.

HOW WOULD YOU FEEL if you were forced to retire solely because of your age? For me, it would be absurd. At age 70, I am blessed with good health and employment that makes use of my experience in business, government and community service. Did my ability to manage or my work ethic lapse on my 70th birthday last November? Of course not. Does my life experience improve my performance and productivity on the job? I believe it does.

In 2006, AARP Hawaii was the only organization to testify in favor of allowing the public to vote on an end to mandatory retirement for state judges. A "yes" vote for Amendment 3 supports AARP Hawaii's position against age discrimination in our state Constitution. I will vote "yes" and urge others to join me and AARP in supporting Amendment 3.

Whether applied to a judge or any other employee, it's time we recognize mandatory retirement for what it is: age discrimination. In Hawaii today, judges are forced to retire at the age of 70, while they still have the energy, skill and judgment to continue serving with distinction. AARP research shows that experienced workers bring invaluable resources and insight to their jobs. There is no reason that age alone should determine fitness to serve.

Let's be clear what this amendment does not do: It does not create lifetime appointments for judges. It does not change judges' terms of six years (district court) or 10 years (circuit and appellate courts). It does not change the requirement for judges to reapply to the Judicial Selection Commission for retention in office, nor does it change the Supreme Court's powers to remove a judge for misconduct or inability to perform the duties of office. U.S. Supreme Court justices and other federal judges have never had a mandatory retirement age.

The age limit of 70 years set in our state Constitution is arbitrary. AARP finds it appalling that age is the sole criterion for mandatory retirement in a system based, in all other aspects, on qualification and performance. The judicial review system contains numerous safeguards to ensure that all judges, regardless of age, are meeting high performance standards. AARP recognizes that the system serves the public interest, other than its one glaring discriminatory provision on mandatory retirement at age 70.

WHEN THE CURRENT age limit was passed in 1959, the average life expectancy for Americans was 71 years. Today, many people remain healthy and productive well past the current average life expectancy of age 78, and Hawaii reports the highest life expectancy in the nation, age 80 to 82. For this reason, and our system for overseeing judges, an age limit is unnecessary. AARP finds that employees in all fields can and do work longer, particularly those in professional and managerial positions. Fitness to serve, not age, is the key for Hawaii's judges.

After Hawaii adopted merit selection for judges in 1978, a nonpartisan commission began conducting stringent examinations of applicants' qualifications, having the sole authority to recommend a short list of candidates to the governor or chief justice for appointment. After confirmation, Hawaii's judges undergo mandatory training, performance reviews and oversight by the Supreme Court, Commission on Judicial Conduct and supervising chief judges. Retention for more than one term by the Judicial Selection Commission is not automatic, and I also note that more than 30 judges at all levels have chosen to retire in the last decade.

Hawaii has changed significantly since this outdated, age-based law was approved by the voters in 1959. It's time to adjust our laws to the realities of the 21st century: longer, more productive lives -- and an end to age discrimination.

I urge voters to vote "yes" for Amendment 3. Remember, don't leave your ballot blank because a blank ballot is counted as a "no" vote.

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