UNDER the Vermont state constitution, Oliver Wendell Holmes would have had to step down from the United States Supreme Court more than 20 years earlier than he did. Chief Justice Warren Burger would have served 10 fewer years, Chief Justice Earl Warren eight fewer. Justice Louis Brandeis would have had to hang up his robe 13 years earlier, Justice Felix Frankfurter 10 years. Current Justices William Brennan, Thurgood Marshall, and Harry Blackmun would be long gone. Then there are Lewis Powell, William O. Douglas ... well, you get the idea. Vermont Supreme Court Justice Louis Peck turned 70 last December, and under the state constitution he was obligated to retire at the end of 1988. But he's hale and hearty, likes the work, and, doggone it, just didn't feel like being turned out to pasture.
So, with the concurrence of Gov. Madeleine Kunin, the state attorney general, and his fellow judges, Justice Peck is challenging the mandatory-retirement provision. He already has an advisory opinion from the state attorney general that the provision was superseded by the federal Age Discrimination in Employment Act, which, as amended in 1986, eliminated age caps for all but a few categories of working people. The federal Equal Employment Opportunity Commission, in a 1987 letter to Rep. Claude Pepper - that gladiator for the rights of senior citizens - also has said that the act protects appointed state and local judges.
But Vermont officials and judges will feel safer to have the issue judicially resolved, especially as one federal appeals court has ruled differently. So Justice Peck is taking legal steps that may eventually place the matter before the US Supreme Court.
This newspaper has consistently supported efforts to roll back limitations placed on people of riper years. There is bountiful evidence that men and women can continue to perform skilled and valuable work well beyond threescore years and ten, and those who wish to go on working and can do so competently should have that right. And no place is this more evident than on the bench.
Other states have age restrictions on judicial tenure similar to Vermont's. Older judges aren't obsolete; such caps are.