Openness elsewhere contrasts with his silence on candidates
POSTED: 1:30 a.m. HST, Mar 27, 2011
LAST UPDATED: 3:12 a.m. HST, Mar 27, 2011
Gov. Neil Abercrombie’s refusal to disclose the names of judicial candidates bucks a recommendation by a panel of prominent members of Hawaii’s legal community and a trend here and across the country toward more openness in the process of selecting judges.
A special committee of the American Judicature Society’s Hawaii chapter, which included former Chief Justice Ronald Moon and the League of Women Voters of Hawaii, in 2005 recommended disclosure of the names.
Nationally, other states with merit selection panels have been moving toward more transparency, according to the judicature society.
In January, Abercrombie refused to disclose the names of candidates from the Judicial Selection Commission for a vacancy on the Hawaii Supreme Court. When he later announced he was selecting Family Circuit Judge Sabrina McKenna as his first judicial appointment, he defended his decision.
“The public doesn’t pick the judge,” he said. “I do.”
He has remained adamant in his refusal, saying he believes disclosure would discourage potential applicants from seeking judgeships.
“It’s clear to me that this is the one area of government where so-called transparency is really an illusion,” he told the Honolulu Star-Advertiser in an interview this month. “All it does is create false drama.”
His position seemed contrary to his campaign last year on the promise of a transparent government, and was a departure from the practices of his predecessor, Republican Gov. Linda Lingle, and Moon, who disclosed the list and sought public comment on the candidates before they made their nominations.
JUDICIAL SELECTIONHawaii adopted a merit-based system of selecting judges when voters approved a 1978 constitutional amendment creating the nine-member Judicial Selection Commission. Previously, the governor and chief justice had discretion in appointing justices and judges. The two must now make appointments from lists of candidates by the commission. Under the system:
>> The governor, Senate president, House speaker and the Hawaii State Bar Association each select two members. The chief justice picks one. The appointments for six-year terms are not subject to Senate approval.
>> No more than four members can be licensed attorneys.
>> The commission submits four to six names of “qualified” candidates to the governor for vacancies on the Circuit Court, the Hawaii Intermediate Court of Appeals and the Hawaii Supreme Court. The commission submits no fewer than six “qualified” candidate names to the chief justice for District Court vacancies.
>> All appointments are subject to state Senate approval.
>> The commission operates in secrecy under the constitutional amendment that mandates “deliberations of the commission shall be confidential.” The commission adopted a rule that keeps confidential its “records, proceedings and business,” including the lists of candidates.
>> Commission members are unpaid. The commission has one paid staff member at its offices at the Hono?lulu District Court building on Alakea Street.
>> The commission is also the sole authority in deciding whether to retain justices and judges for succeeding terms. These proceedings are also confidential. The commission’s decisions are not subject to review.
>> A commissioner cannot decide whether to retain a justice or judge if he or she has a “substantive matter” pending before the justice or judge.
“We believe that Gov. Abercrombie should release the names,” said Nikki Love, Common Cause Hawaii executive director. “Previous governors were transparent about it, and we think Gov. Abercrombie should continue in that way. Continuing the practice of transparency in this area would be healthy for the system and the public’s confidence in the process.”
The Star-Advertiser has filed an appeal over Abercrombie’s decision with the Office of Information Practices.
But some support the governor, including Honolulu attorney Daniel Case, retired Circuit Judge Eden Elizabeth Hifo and former Gov. Ben Cayetano, who, ironically, was the first to pierce the secrecy by releasing the names after he made his selection.
Hawaii's judicial selection system was created by a constitutional amendment approved by voters in 1978. Under the system, the governor and chief justice must select justices and judges from lists of “qualified candidates” submitted by the Judicial Selection Commission.
The amendment mandated that the commission’s deliberations be “confidential,” which was interpreted to mean that the panel’s list would not be made public. But in 1993, the Hawaii Supreme Court ruled that while the commission could not disclose the names, the governor and chief justice were not barred from releasing them.
Moon went one step further than Cayetano by disclosing the lists and seeking public input. Lingle later followed that practice.
Cayetano, Abercrombie’s friend and supporter, told the Star-Advertiser in an email that he agrees with Abercrombie that the appointments are the governor’s choice.
The process of selecting judges was “not intended to be subject to popular opinion, which may provoke rumors and unsubstantiated allegations about the nominees,” he said.
He released the names “because although I agree that it may discourage some who were not selected, there were others who felt honored they made the final list,” Cayetano said.
Lingle’s approach “may have been the politically popular thing to do — but that is not the process set forth in the state Constitution,” he said.
In its November 2005 report, the special committee of the American Judicature Society’s Hawaii chapter recommended that the process of selecting judges should be “as open and transparent as possible.”
“Release of the names by the appointing authorities increases transparency because it gives the public a second opportunity to comment on nominees,” the panel’s report said. “In the past, the only opportunity for public comment was at the Senate confirmation hearing.”
In addition to Moon, panel members included Lingle’s attorney general, Mark Bennett, former state Sen. Colleen Hanabusa, Hawaii State Bar Association representative Doug Crosier, other judges and several private attorneys.
Jean Aoki of the League of Women Voters of Hawaii said the organization still believes the names should be released.
“Transparency is better,” she said. “People know so little about the judiciary. It’s a mystery to them.”
Seth Andersen, executive director of the American Judicature Society, a nonpartisan group that seeks to uphold the independence of the judiciary, said the Hawaii panel’s recommendation is in line with the national organization’s policy that “there’s not a compelling interest to keep the identity of the nominees secret.”
Among the 33 other states with a merit selection process in some form, the trend has been toward “more transparency, more public access to information, more opportunities for people to have access to information about who is applying, who is nominated, and more opportunities for people to provide input,” he said.
He cited Tennessee, where the names of judicial applicants are disclosed, and Iowa, where its commission interviews applicants in public.
Andersen said it’s extremely difficult to determine the validity of the contention that releasing the names of the finalists would deter potential applicants who fear repercussions from clients or partners if it’s known they are seeking another job.
He said the only way to objectively study the issue is to survey lawyers, but questioned whether senior partners would disclose that they would retaliate or whether lawyers would acknowledge that they fear reprisals.
Lingle could not be reached for comment. But Moon, a staunch advocate for the release of the names, said he decided to publicize the names after the high court’s 1993 decision.
“I realized the public had very little understanding as to how we in Hawaii select our judges, and it was important to me to get the public involved in order to raise their trust and confidence in our system,” he said.
He said in all the years he tried to recruit lawyers for the bench, he has never heard those attorneys tell him they are “unwilling to apply because they don’t want their clients or partners to know that they are thinking of changing jobs.”
Moon said he believes if lawyers take that position, they in their own minds aren’t ready to make the sacrifices in terms of lower pay or a more scrutinized lifestyle as a judge.
The former chief justice also said he found comments from the public helpful.
He recalled one man saying he saw a District Court judicial candidate illegally dump trash in a gulch. Moon said when he asked the candidate about that report, he appeared exasperated, but admitted to the wrongdoing. Moon said he eliminated him from consideration.
Chief Justice Mark Recktenwald, following Moon’s practice, earlier this month released names of candidates from the commission for district judgeships and sought public comment.
Abercrombie, however, did not disclose the candidates when he made his second judicial appointment this month in naming Joseph Wildman as a Maui circuit judge.
The governor will be making more judicial appointments, including replacements for Hawaii Supreme Court Associate Justices James Duffy and Simeon Acoba, who must retire at age 70.
Abercrombie said he had “extensive discussions” over the years with lawyers, judges, people involved in the selection of judges and those concerned about getting the “best possible candidates” for the bench.
“It was made clear to me that there was a concern that not enough people were applying,” he said.
Abercrombie said the names of candidates submitted for the high court vacancy he filled with McKenna were all “uniformly excellent.”
But he said more and more members of the legal community indicated that potential applicants didn’t want to apply because their names might be publicized and “the consequences of that.”
Abercrombie said a “parallel example” was trying to pick the attorney general. “I had to walk on eggshells,” he said.
Although some wanted to be considered, they indicated they didn’t want their names disclosed in case they couldn’t get the job, he said.
Abercrombie said disclosure of the judicial candidates would “inevitably cause the public and others to start comparing candidates,” but said the Senate rejection last year of Lingle’s chief justice nominee, Katherine Leonard, was not a factor in his decision.
The governor also said public comment on the judicial candidates would not help him.
“If somebody else wants to run on that for governor, they can,” he said.
”But I think the integrity of the judiciary is paramount” and the choices for the bench will be “maximized by doing it the way I’m doing it,” he said.