POSTED: 1:30 a.m. HST, Feb 2, 2011
I Read with interest the editorial urging Gov. Neil Abercrombie to release the names of nominees he receives from the Judicial Selection Commission for Circuit and Appellate Court judges ("Open process to public view," Star-Advertiser, Jan. 27).
The Hawaii Supreme Court in 1993 decided "it is within the sole discretion of the appointing authorities whether to make public disclosure of the Judicial Selection Commission's lists of judicial nominees."
That decision, Pray v. Judicial Selection Commission, was authored by Justice Steve Levinson and also upheld the commission's own rule of confidentiality finding nondisclosure consistent with the Hawaii Constitution.
Thus, the issue of public disclosure by the appointing authority is entirely within the discretion of our governor for Circuit Court and Appellate Court judgeships, and our chief justice for District Court judgeships.
Many of us welcomed the release of nominees' names, and as a former news reporter, my strong preference has always been in favor of disclosure absent some overriding counterbalance of public interest. Gov. Abercrombie has declined to make the list public to attract more qualified candidates to the judgeships he appoints. I think there's merit to his explanation based on what we can observe from the experience of disclosures during the Lingle administration.
In recent years there has been a paucity of applicants for judgeships subject to gubernatorial appointment. The Judicial Selection Commission apparently keeps the number of applicants confidential, but the fact may be inferred from the many times the commission has re-advertised and extended the time to apply for vacancies in hope of attracting more candidates.
There may be several reasons the number of applicants has declined, but the concern is whether disclosure of unsuccessful nominees is one of them. We want to encourage competent, experienced attorneys to offer themselves to the bench without risking damage to their careers if they should not be chosen. This risk may seem hypothetical, but unfortunately, it is not.
In recent years I know of four highly qualified attorneys, two women and two men, from three different and well-respected law firms, who were nominated for judgeships but not appointed. None of them works for those firms today.
In each case at least one of their partners retaliated against them for their willingness to leave the firm to join the judiciary. In each case the firm was large enough so the fact of application would not otherwise necessarily become known to all the partners unless the attorney were selected by the governor. In each case, clients learned from the public disclosure that the attorney was willing to leave private practice, and some clients expressed concern about finding a new attorney or law firm.
In all cases, their diversity of background, legal knowledge and experience would enhance the quality of the bench.
Perhaps an analogy may be drawn between nondisclosure of unsuccessful judicial applicants and the applications received by Gov. Abercrombie in the context of his Cabinet appointments. In both cases, only those chosen were made known and are subject to state Senate confirmation. Citizens have the ability to comment at a public hearing where the media can report the source and content of those comments. In contrast, there is no way to know what comments are solicited by or given to the governor even when names are floated or otherwise made public.
It does not seem wise or appropriate to make public the names of all those citizens who offered their services but were not chosen for Cabinet positions, and likewise there are legitimate reasons not to disclose unsuccessful judicial nominees.
Gov. Abercrombie's decision to announce only his judicial appointment is as legitimate as his predecessor's decision to release the entire list.