Judges' retirement age should be upheld -- for now

THE ISSUE A proposed state constitutional amendment would repeal mandatory retirement of judges at age 70.

HAWAII and most other states require judges to retire at a certain age, although they might be perfectly able to excel on the bench for many more years. A constitutional amendment on the ballot next month to eliminate Hawaii's mandatory retirement age of 70 for judges is tarnished by partisan politics, but the judiciary and Hawaii State Bar Association should examine how best to allow jurists to retain their gavels beyond that age.

For now, voters should reject this constitutional amendment. If approved, it could allow judges to remain in black robes for life, subject to reappointment. More importantly to those who introduced the amendment, it would allow judges nominated by past Democratic governors to postpone their retirements until Gov. Linda Lingle is out of office, depriving the Republican governor of appointing replacements for numerous judges who soon will reach retirement age.

Thirty-eight states have compulsory retirement laws for judges, according to a 1999 New York judiciary task force that recommended changes in the law. Hawaii is among 24, including New York, that compel retirement at age 70. The other mandatory retirement laws range up to age 75.

The task force pointed out that New York's mandatory retirement law was enacted in 1869, when life expectancy was in the 40s. People now can expect to live 78 years. Life expectancy grows with age, so a 65-year-old judge can expect to live into his or her 80s.

Studies and medical research also indicate that judges' performance improves with age. That is supported by the capabilities of federal judges such as the late Martin Pence, who served as a U.S. senior district judge in Hawaii to age 95, and present Senior Judge Samuel King, who is 90.

The New York task force recommended extending eligibility to age 78 for a limited group of judges or instituting a "senior judge" system, similar to the federal formula, which allows judges, who are appointed for life, to take reduced caseloads -- with reduced pay -- in senior years.

The task force also recommended that an evaluatory panel consider the need for additional judges, physical and mental competence, legal scholarship, productivity, temperament, work ethic and complaints about judicial misconduct in determining whether a judge could serve terms beyond age 70.

Those recommendations are dormant, and New York's mandatory retirement law for judges remains intact. The New York State Bar Association's president last month appointed a new task force headed by a former judge to study the issue and make recommendations.

None of this examination has been conducted in Hawaii. It should be before taking the monumental step of altering the state Constitution. Attorney General Mark Bennett points out in a column in today's Insight section that no bill to eliminate mandatory retirement for judges was even introduced in the Legislature between 1994 and 2003. "Why now?" he asks. Obviously, partisan politics is the issue's driving force in Hawaii.