Assure openness of judiciary picks

Gov. Neil Abercrombie is too secretive about appointing state judges — far less open than were his immediate predecessors, Linda Lingle, a Republican, and Ben Cayetano, like Abercrombie, a Democrat. Although today’s Judicial Selection Commission that advises the governor has acted within its own authority to inject sunshine into the process of filling these influential posts, the Legislature should go even further to protect the public’s right to know.

One vehicle to accomplish this goal is House Bill 420, which would ask Hawaii voters whether the state Constitution should be amended to require the commission to publicly disclose lists of judicial nominees it sends to the governor for consideration.

Judiciary Chairman Rep. Karl Rhoads deferred decision-making on the bill last week but said that he was inclined to move it along. Rhoads should swiftly act on that inclination. Lawmakers may find a way to codify the bill’s intent without requiring a constitutional amendment, but the most important thing is to keep this laudable goal in sight. If the issue ultimately requires a public ballot, we’re confident that voters will decide in favor of transparency.

The League of Women Voters and other open-government advocates support the measure, noting that it would galvanize community discussion and improve public confidence in the Judiciary. The Abercrombie administration is predictably opposed, offering essentially the same argument as in 2011, when the governor refused to disclose the list of nominees the commission had recommended when he elevated Sabrina McKenna to the Hawaii Supreme Court: that a lack of confidentiality would discourage worthy candidates from applying.

The Honolulu Star-Advertiser sued and won in that case, forcing Abercrombie to release the names. In the wake of that ruling, the Judicial Selection Commission rightly revised its own rules to make disclosing the names of nominees standard practice. Putting this issue to the voters could make permanent a necessary rule change that could be more easily undone otherwise.

The nine-member commission is appointed by the governor, Legislature, chief justice and Hawaii State Bar Association to screen judicial applicants and recommend a short list of nominees. For each opening on the Supreme Court, Intermediate Court of Appeals and Circuit Court, the governor must choose from a list of four to six candidates recommended by the commission. Cayetano and Lingle routinely released the short list of nominees, along with their ultimate pick, an open practice that Abercrombie tried to subvert.

Releasing the short list prevents all sort of political shenanigans. The public will know if the commission might be trying to stack the deck, offering one candidate that towers over the others, or, conversely, if the governor has passed over a clearly superior candidate for spurious reasons.

The commission feared no shortage of applicants when it revised its own process in late 2011, after the Abercrombie administration lost the lawsuit. Commissioners have noted, in fact, that there are many reasons why the number of applicants for higher-level state judgeships have decreased over the years, most notably judicial salaries that are among the lowest in the nation. Senate confirmation hearings, constraints on judges’ lifestyles, the political inclinations of the appointing authority and an application process that includes disclosure of the top candidates’ names are lesser factors.

It is vital that the public continues to have a voice in the vetting of top judicial candidates who, if appointed, will hold real power over the citizens of this state. Those prospective public servants who make the Judicial Selection Commission’s short list should consider it an honor to be named.