Circuit Judge Richard Pollack has been nominated by Gov. Neil Abercrombie to a 10-year term on the state Supreme Court, but the reality is that he stands to be forced to depart the bench after little more than eight years when he turns 70 years old. Hawaii is among the majority of states that force state judges to step down because of age, but should eliminate that misguided constitutional requirement at the earliest opportunity.
State legislators recognized that need six years ago when they put on the ballot a constitutional amendment to repeal the forced retirement by age, but the effort was tarnished by partisan politics and rejected by voters. Then-Chief Justice Ronald Moon was to reach the age of 70 four months before the end of Republican Linda Lingle’s term as governor; she named Mark E. Recktenwald as Moon’s successor, and he won’t turn 70 until 2025.
Associate Justice Simeon Acoba will be forced to retire when he turns 70 in 2014, but Abercrombie would prefer that the constitutional mandate be changed.
"We want depth and breadth of experience," he said.
We agree. Continuing to abide by some arbitrary birth milestone smacks of ageism, not quality of acumen.
No age limits are required of federal judges, including U.S. Supreme Court justices. While the federal Age Discrimination in Employment Act bans mandatory retirement except for a few circumstances, the U.S. Supreme Court has included state judges among those exceptions.
Only 19 states, including California, decline to require state judges to step down once they reach their "golden years." While most states require an exit age between 70 and 75, Vermont’s farewell age is 90. The age limit of 70 for Hawaii’s judges was approved as part of the Constitution upon statehood in 1959.
Age limits in many states were "based in good measure on the assumption that increasing age carries with it declining intellectual ability," according to Howard Eglit, a law professor and expert on law and aging at Chicago-Kent College of Law.
However, he added, "Age is an individualized thing. You can have a 40-year-old who’s suffering from dementia, and a 90-year-old who’s doing just fine."
Indeed, people are living longer than they were a half-century ago, with many seniors staying more fit, active and productive today in their golden years. Further, Hawaii’s judicial system already has a built-in process that could be used to prevent a judge from wearing the robe past his or her prime. State judges are named to 10-year terms, and the Judicial Selection Commission has the role of reviewing and renewing terms of office for those who wish to remain on the job and are capable of doing so.
Possible changes in the current system should be assigned for study by a special task force of the Hawaii State Bar Association. Those could include a senior judge system, allowing judges to be assigned reduced caseloads in substitute roles similar to the federal system; the late U.S. District Judges Martin Pence and Samuel King performed brilliantly into their 90s.
At this point, judges are the only Hawaii state employees who are forced to retire at a certain age, even though they may be in their prime when the productive lifespan of Americans may extend beyond that age. Voters who rejected change under different circumstances should be provided another opportunity to repeal the mandatory retirement age and extend the benefits reaped from Hawaii’s legal veterans.
