POSTED: 1:30 a.m. HST, Mar 16, 2011
This is Sunshine Week, when advocates of open government remind our political leaders of their responsibilities to conduct the public’s business in a forthcoming and transparent way.
A good example of such openness comes from new Chief Justice Mark Recktenwald, who followed the policy of his predecessor in releasing the names of candidates for appointments to district court judgeships.
However, Sunshine Week has been clouded by Gov. Neil Abercrombie's continuing refusal to reveal the names of those candidates offered for his consideration for associate justice to the Supreme Court.
In early February, Cathy Takase, acting director of the Office of Information Practices, told the Star-Advertiser that Abercrombie "must release the names under the law" after his choice was confirmed by the Senate. The governor nominated Sabrina McKenna to the Supreme Court, and she was sworn in on March 3, but he has refused since then to divulge the other names on the list sent to him by the Judicial Selection Commission.
In doing so, Abercrombie defies both the public’s right to know and the example of his predecessors: Gov. Ben Cayetano released the names following the Senate confirmation of his choice; Gov. Linda Lingle released the names before making her choice.
Abercrombie does not need to follow Lingle’s example. The OIP, citing a 1993 Hawaii Supreme Court ruling, issued an opinion in 2003 that the governor could withhold the names of the judicial hopefuls prior to the Senate confirmation of the governor's choice to fill a vacancy. Otherwise, the court said, the Senate "could simply 'hold out’ until the governor had no choice but to appoint its preferred candidate."
This makes sense. But Abercrombie's rationale for withholding the names after confirmation is less defensible.
His office maintained that he would not disclose the names even after the Senate confirmation of his nominee because his "obligation to appoint judges to the Supreme Court … could be frustrated by the chilling effect of potential nominees knowing that his or her application may be disclosed."
That’s debatable. The OIP’s 2003 opinion found otherwise, stating that "any argument that disclosure … would frustrate a legitimate government function by reducing or weakening the pool of qualified judicial candidates is not compelling and is rejected."
And the Supreme Court in its 1993 ruling noted that, "in our view, no stigma should attach to any judicial nominee not eventually appointed to office, inasmuch as all nominees are by definition deemed by the JSC to be qualified for appointment."
This week marks the 45th anniversary of the federal Freedom of Information Act.
The law at the state level was enacted in 1975, but the authority it gave to the OIP is limited.
Nonetheless, Abercrombie’s decision to reject a clear, common-sense finding that supports the people’s right to know is an affront to open government.