More would-be judges sought for bench seats

The heads of two commissions are urging lawyers and judges to submit applications so the panels can pick the best finalists for vacancies on the Hawaii Supreme Court and the U.S. District Court bench.

The state Judicial Selection Commission postponed the deadline for applications for an associate justice position from Feb. 3 to April 16 because not enough applicants had applied.

"I would really like to encourage more applicants to come forward," said Susan Ichinose, chairwoman of the state Judicial Selection Commission. "This is one of the most important positions in the state."

The Federal Judicial Selection Commission’s deadline for the district court position is Monday.

Larry Okinaga, chairman of the commission, said he would have a better idea of how many applied when he returns to Hawaii from the mainland this week.

But he said the commission does not intend to extend the deadline.

The two positions are considered highly prestigious and influential in the legal community.

The associate justice job is one of five positions on the state’s highest court. The federal judgeship is a lifetime appointment.

The Supreme Court vacancy will be created on June 4 when Associate Justice Jim Duffy retires at age 70 under the state Constitution’s mandatory retirement provision.

The federal vacancy will be the result of U.S. District Judge David Ezra voluntarily becoming a senior federal judge on June 27, his 65th birthday. There is no mandatory retirement age for federal judges.

Ichinose said the number of applicants will be disclosed when the commission names its finalists, but said she could not say at this time how many had applied before the original deadline.

The nine-member commission, established by a 1978 constitutional amendment, must submit four to six names to Gov. Neil Abercrombie, who will make the appointment.

Ichinose, speaking hypothetically, said that if only five had applied, the issue would be whether it is "good public policy" to select from five or postpone the deadline to get more applicants.

"I think it is unfortunate that we can’t attract more good lawyers to apply," she said.

Ichinose said no empirical study has been done to gauge whether lawyers have declined to apply because the names of finalists are made public, one of Abercrombie’s arguments when he departed from the practice of two previous governors and refused to disclose names.

The governor ultimately released names on three lists provided to him last year for selection of his first judicial appointments. His decision came after being sued by the Honolulu Star-Advertiser, resulting in a court order to release the names, and after the selection commission said it would start publicly announcing the names anyway.

Ichinose said Hawaii’s judicial pay, lowest in the nation, has to be a factor for a private attorney contemplating applying for a high court position.

"It’s a huge pay cut," she said.

She noted that in the past 10 years, only Duffy and two judges on the Intermediate Court of Appeals came from the private sector to serve on the two appellate courts.

The others were either government lawyers or lower-court judges.

Ichinose said the commission hopes to send the finalists’ names to the governor in time for the Senate to review the appointment this session.

It’s difficult to determine whether the simultaneous search for candidates for two openings cut down the number of applicants for either.

There is no prohibition against applying for both posts.

Ichinose said while some might forgo seeking the state position in favor of the federal job, it might also work the other way around. It depends, she said, on how they view the positions.

The federal commission headed by Okinaga was created by U.S. Sens. Daniel Inouye and Daniel Akaka in 2006 to screen candidates for federal judicial candidates.

Okinaga credited Inouye and Akaka for setting up the commission, which made Hawaii one of about 20 states in which senators set up screening panels and commissions.

In the other states, senators can submit names on their own, he said.

Okinaga said the nine-member federal commission talked to various groups, such as the Hawaii State Bar Association and other lawyer organizations, to encourage applications so the panel would have a strong and diverse pool from which to pick the finalists. He said there is still time for individuals to apply.

The panel went through one selection process that resulted in the appointment of U.S. District Judge Leslie Kobayashi.

The commission sent three names in alphabetical order to the senators, who in turn ranked Kobayashi as the top choice in sending the names to President Barack Obama. The other two were federal Public Defender Peter Wolff and Sabrina McKenna, who later was picked by Abercrombie as a high court associate justice.

Okinaga said that for Ezra’s vacancy, the commission hopes to send the names of at least three candidates in alphabetical order to the senators by the end of May.