POSTED: 1:30 a.m. HST, Feb 5, 2011
I write in support of Gov. Neil Abercrombie's decision not to make public the list of prospects for the Hawaii Supreme Court.
Both the editorial board of the Honolulu Star-Advertiser and its excellent political writer, Richard Borreca, have assailed the governor for not publicizing the list of prospects he received from the state Judicial Selection Commission on the grounds that it goes against the idea of open government.
Personally, I support the general principle of open government, but the primary purpose of preserving confidentiality in the work of the Judicial Selection Commission and its duty to submit lists of the most qualified candidates to the appending authority is to attract the most qualified attorneys in the state and get them to submit their names to the commission as prospective judges.
I was president-elect of the Hawaii State Bar Association in 1978 and co-chaired (with Russell Cades) the committee to study the merit selection process, as it is called, and to draft such a program for submission to the 1978 Constitutional Convention.
Our final product was first submitted to all members of the Hawaii State Bar Association and then, upon heavy approval of the state attorneys, to the 1978 convention as a proposed amendment to our state Constitution.
After hearings and discussions, and some fairly minor changes in the program, the Judicial Selection Commission was established as Article VI, Section 4 of our state Constitution.
Section 3 of the same Article VI states that the governor, with the advice of the Senate, shall fill the judicial vacancy by appointing a person from the commission's list of prospects numbering no less than four and no more than six nominees.
The list of nominees is sent to the governor in confidence, and the governor may or may not publish the list of nominees.
Gov. Abercrombie chose Circuit Judge Sabrina McKenna from the list of nominees for the Hawaii Supreme Court and stated that he thinks that "publishing the list would be detrimental to attracting prospective judicial applicants."
The most and only important purpose of having a Judicial Selection Commission is to seek out the most capable attorneys in the state for service as judges.
Many of the discussions among the committee members on the Merit Selection Committee dealt with the question of how best to attract the top legal talent to the Judiciary.
We felt that many, if not most, of the attorneys believed to be the best attorneys in the state would not apply for a judgeship if their applications would be made public because it might well affect the goodwill of their clients, as well as their partners and associates, whether put on the ultimate list or not.
We also hoped that the commission itself might seek out an outstanding attorney and gain his or her consent to apply for judgeship, if provided this initial confidentiality.
The submitting of an appointable list of candidates to the governor in confidence adheres to the same principles.
It should be noted that very few attorneys in private practice submit their names for judgeships, whereas the heavy majority of our judges come from previous public service in state or city government.
Such persons should be part of the applicant pool for prospective judges, but I and many other attorneys believe that a balance of attorneys from both public and private practice would provide a better judiciary, particularly in the appellate courts like the Hawaii Supreme Court.
I note that only five people with significant experience as private attorneys have served on the Supreme Court during the last 20 years.
I believe the percentage should be higher and I believe that protecting the confidentiality of the process would lead more attorneys to submit their names for possible appointment.
Thus, I compliment Gov. Abercrombie for appointing Judge McKenna to the Hawaii Supreme Court without first publishing the list of nominees received from the Judicial Selection Commission.
Please remember that the appointment of every nominee is still subject to the consent of the state Senate.
—Editor's note: Dan Case is on the board of Oahu Publications Inc. (the Star-Advertiser's parent company), which is separate from this newspaper's editorial board. Also, the state Office of Information Practices this week said the governor must reveal the list of judge candidates once his nominee is confirmed.