In a stark rebuke of Gov. Neil Abercrombie, the Judicial Selection Commission has decided to make public the names of finalist candidates for future judgeships, lists that the governor had tried to keep secret.
The commission’s policy change is a major victory for open government and a nudge to the governor to recognize and adhere to the public’s right to know.
Early in his administration, Abercrombie let it be known that he regarded sunshine as a threat to his executive decision-making.
In early February, he ignored the judgment of the acting director of the Office of Information Practices that he "must release" the names of commission nominees to fill a state Supreme Court vacancy.
Cheryl Kakazu Park, the new OIP director, in an anti-transparency blow, later declared "the raw truth" that her office lacked the authority to make government records open to the public.
The governor’s refusal to disclose the names of nominees to the high court, leading to the selection of Sabrina McKenna, defied the routine vetting of judicial nominees by former governors Ben Cayetano, following Senate confirmation of his choice, and Linda Lingle, upon her receipt of the list.
The policy also thumbed a nose at the 1988 law that was intended to open the government to public scrutiny.
Abercrombie’s reasoning was that disclosure of the names of those not chosen from the commission’s list could have a "chilling effect of potential nominees knowing that his or her application" would be revealed.
However, the OIP had found in 2003 that such an argument "is not compelling and is rejected."
The Supreme Court had determined a decade earlier that no such stigma would result from disclosure since "all nominees are by definition deemed by the JSC to be qualified for appointment."
Likewise, responding to a lawsuit filed by the Honolulu Star-Advertiser to challenge the refusal to disclose the names, state Circuit Judge Karl Sakamoto ruled on Monday that Abercrombie’s reason for concealing the names, while "plausible," was "speculative" and not a legitimate exemption from the state open-records law.
Sakamoto did not specify whether the names should be disclosed before or after the governor makes the choice from the list.
Now there’s no ambiguity: The Judicial Selection Commission answered that question two days later by deciding, by policy, to divulge the names upon sending the list to the Capitol’s top floor.
"The judicial selection process will be strengthened by the new rules because the work product of the JSC will now be more easily accessible and more readily evaluated by the public," said the nine-member panel.
This move in the public interest will become even more laudable with at least two powerful vacancies on the state Supreme Court looming due to mandatory retirements at age 70: Justices James E. Duffy Jr. next June and Simeon R. Acoba Jr. in March 2014.
Abercrombie should not let the legal battle over disclosure of judicial selection lists further tarnish his future policy regarding public disclosure. Continued resistance by Hawaii’s present executive branch should prompt the next Legislature to make clear the Office of Information Practices’ semi-autonomy in determining what should or should not be made public.
"A democracy requires accountability, and accountability requires transparency," President Barack Obama recognized upon entering the White House.
As the late Justice Louis Brandeis wrote and Obama noted, "Sunlight is said to be the best of disinfectants."