Part 2 of Article 78 of the New Hampshire Constitution, the provision that bans judges and sheriffs from holding office after they reach 70, should be repealed. In the meantime, lawmakers should override Gov. John Lynch's veto of House Bill 665, a bill that would expand the pool of retired judges allowed to hear cases periodically to include mentally and physically fit retirees, no matter what their age.

In his veto message, Lynch expressed fears that permitting older judges to hold "temporary assignments" would allow the court to effectively reappoint judges over age 70. That power of appointment belongs to the governor, and the Constitution specifically bars an older judge from holding office.

Lynch's concerns are unwarranted. What the court wants, as happened recently when funding cuts made it impossible to put enough judges on the bench, is the ability to ask some older justices to preside on a single case.

In 1998, the court affirmed retired Supreme Court judge William Batchelder's ability to sit on the Supreme Court during the second Claremont lawsuit though he had reached the age of 70. Retired justices retain their judicial powers, the court ruled. They can't hold a judicial office, but they can serve the system on a temporary basis.

Lynch said lawmakers can settle the issue by amending the constitution and they should. Just look at the U.S. Supreme Court. Four of its justices are in their 70s, and Justice John Paul Stevens is 89. In 1792, when the ban on judges serving past age 69 was put in place, the average lifespan was between 35 and 40; 70 was considered ancient. That's not the case today. It would be a mistake to discriminate against older judges whose wisdom and experience would be a benefit, not a detriment.