Age as a basis for categorizing people is discriminatory and its application to judges is no exception. But judges are treated with exceptional discrimination: they are the only state employees or public officials for whom a mandatory retirement age is set forth in the Hawaii Constitution. Those opposing the amendment are largely speaking past the amendment and in effect advancing proposals that should be discussed explicitly and in the open, not under the guise of a debate on age.

These arguments unfairly place state judges on an inferior footing in comparison to their federal court brethren. Hawaii Federal District Court judges and our Ninth Circuit Court of Appeals judge are predominantly drawn from the same pool of lawyers as are state judges. By and large, both state judges and Hawaii federal judges practiced in our state or in our state courts before appointment to the bench. Yet while shaped by the same legal practice and culture as state judges, federal judges are not disqualified from serving at any particular age; indeed they may choose to serve for life.

Applicants for state judgeships undergo a selection process that is as stringent as that for federal judges. While in office, state judges are also subjected to formal periodic review and evaluation. Age has no relevance to qualifications of or to effective service by Hawaii state judges as it has none for Hawaii federal judges.

The argument that retiring judges at a specific age creates opportunities or vacancies for younger attorneys to ascend to a judgeship is similarly wrong. Persons whose years in legal practice or on the bench have garnered them the respect and trust of the Judiciary, the bar and the community may well represent the "best" choice for judicial office.

But establishing a mandatory retirement age of 70 has the general effect of disqualifying people in their 60s from appointment because they would serve less than a full term of 10 years (for Circuit and Appellate Court judges) from appointment: thus establishing a de facto disqualifying condition "not at age 70 but in the 60s" age category.

Additionally, the contention that a mandatory age limit opens up more vacancies is manifestly incorrect. A recent study by the Hawaii chapter of the American Judicature Society indicated that beginning in 2002, of 42 full-time judges retiring, only nine retired because of the mandatory age limit. Thus most vacancies occur for reasons as diverse and as particular as the circumstances that cause individual judges to leave before 70. Age limits have simply not proven to be an obstacle or a barrier to opportunities for younger lawyers.

The challenge to "septuagenarians and octogenarians" sitting on the bench is simply an attack on the status of age itself and with it the "dumbing down" of life and legal experiences. But as with any occupation, accumulated mastery of the subject matter, in this instance of legal principles, can engender greater productivity. This age objection also deprives the state and the general public of the knowledge and skill of judges who could assist in alleviating the judiciary’s workload by serving in auxiliary positions such as that of a substitute or per diem judge.

Finally, the obvious: competence, commitment, and courage have nothing to do with age. They are all about character. No age category has a monopoly on these attributes. People who possess these virtues are who we want in our judicial system. We cannot afford to reject them, whether they seek to enter the Judiciary or to continue to serve in it, simply because of the circumstance of age.