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Gov’s refusal to release list risks Judiciary’s transparency

David Shapiro

Gov. Neil Abercrombie’s refusal to abide by an Office of Information Practices opinion that he must make public the names of judicial candidates is a dangerous step back from the transparency in appointing judges we’ve achieved in the last decade.

For eight years, Gov. Linda Lingle publicized the names of the six finalists provided by the Judicial Selection Commission for openings on the bench and sought public comment before making her choice.

But Abercrombie refused to release the selection commission’s list when he appointed Sabrina McKenna to the Supreme Court, claiming fear of publicity deters qualified lawyers from applying.

OIP said the governor doesn’t have to release the candidate list before making a pick, as Lingle did, but that the list is a public record and must be released after the nominee is approved by the Senate — similar to the practice of former Gov. Ben Cayetano.

Abercrombie thumbed his nose at OIP’s fair compromise, which would protect the privacy of judicial nominees as long as the issue is unsettled, while providing the public enough information in the end to fairly evaluate whether the governor and Judicial Selection Commission did a proper job of picking judges who exercise immense power over us.

Abercrombie’s evidence that secrecy produces better judges is skimpy, anecdotal and unconvincing; we certainly didn’t have better judges in the 1980s and 1990s before Cayetano and Lingle ended the absolute secrecy that Abercrombie wants to resume.

Back then, elected officials used back-door manipulations to get their cronies in place to assure that the favored few got the choicest assignments — including $1 million-a-year Bishop Estate appointments handed out by the courts to a House speaker, a Senate president, a chief justice of the Supreme Court and a chairman of the Judicial Selection Commission.

An open and honest Judiciary is seriously threatened by the attempt of Abercrombie and the lawyers to hide from accountability, especially with our history of mischief and corruption when transparency has been lacking.

If they won’t accept a fair compromise such as the one suggested by OIP to let the public monitor the selection process, we’ll need to keep having this conversation every time one of these appointments comes up.

And ultimately, we’ll have to discuss whether the public should take over the vetting process by joining the many other states that elect their judges.

Electing judges is fraught with problems, and a reasonably transparent appointment process such as we’ve enjoyed under the last two governors is a far superior way to go.

But if Abercrombie and the lawyers make it a choice between judges chosen in total secrecy by self-serving politicians and lawyers or judges chosen by voters in open elections, the election option could become the lesser of two evils.

David Shapiro can be reached at volcanicash@gmail.com or blog.volcanicash.net.


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