As the number of applications for the Hawaii Supreme Court dwindles, almost all of the finalists for the last four openings on the high court have been state judges.
In contrast, the list of six finalists for a vacancy nine years ago had two private attorneys, including one who was appointed.
The numbers suggest that fewer private attorneys are seeking to serve on the state’s highest court.
Judicial Selection Commission members are concerned about the trend, as well as the decreasing number of applications.
The reasons range from the relatively low pay to the perception that the application process is too onerous and too political, commission members say.
But as part of a new era toward openness, members for the first time have been holding meetings with lawyers across the state to encourage more applicants.
As commission member Annelle Amaral put it, the move is to "demystify" the process.
"We’re very open to receiving all of these applicants and giving them a fair shake," commission Chairwoman Susan Ichinose said. "I don’t know if that’s been the public perception in the past."
The commission is composed of nine unpaid members and is probably the most powerful state entity that does its work in secret.
Established by a 1978 constitutional amendment that mandated that its "deliberations" be confidential, the commission screens judicial applicants and submits lists of four to six qualified candidates to the governor.
For District Court appointments, it sends lists of finalists to the chief justice.
In the past the commission had interpreted the mandate as putting a lid on all its workings. But under Ichinose’s leadership, the commission last year amended its rules. It now makes public the names of the judicial finalists when it sends the lists to the governor and chief justice.
Gov. Neil Abercrombie has maintained that one reason lawyers don’t seek judicial appointments is that they don’t want their names made public if they become finalists. He departed from the practices of two previous governors and refused to disclose the lists last year.
A state judge, however, ruled Abercrombie did not have evidence to support that rationale and ordered him to release the names.
The commission rendered the controversy moot when it announced it would disclose the names.
The commission’s amendments last year also allow it to release statistical and historical information on patterns and trends in its judicial selection process.
The result was the commission releasing last week the number and gender of applicants for each judicial position the past 10 years.
The data show:
» For District Courts, the lowest tier of the system, the number of applicants has remained generally the same. Oahu District Court openings still draw dozens of applicants.
» For Oahu Circuit Court the number of applicants was in the 30s and 40s until 2005. Last year 20 applied.
» For the Intermediate Court of Appeals, applications show a slight drop. For two vacancies, 31 applied in 2003 and 2004, and 16 for another in 2007. The latest opening, in 2010, drew 13.
» The biggest drop was for the high court. The commission had to extend the deadline for applications for chief justice several times. It eventually received 12 applicants in 2010.
The commission submitted a list of six finalists, including Mark Recktenwald, who was named chief justice.
For three associate justice vacancies since 2009, the number of applicants was so low that most of them made the finalist lists.
In 2009, 10 applied, and the commission sent six names to Gov. Linda Lingle, who appointed Recktenwald as associate justice.
Last year only seven applied, and five finalists were to sent to Abercrombie. He chose Sabrina McKenna.
This year nine applied for a vacancy and five made the list. The governor appointed Richard Pollack.
The four lists had 22 names, but some finalists were on more than one list. The total number of individuals was 11.
All were state judges except David M. Forman, interim director of the University of Hawaii law school’s environmental law program, and Steven Nakashima, who at the time was a former judge.
In contrast, 24 applied for a high court vacancy in 2003. James Duffy, one of two private attorneys on the finalists list, was appointed associate justice.
The next time the commission will be accepting applications for the high court is 2014. Associate Justice Simeon Acoba reaches age 70 and must retire under the constitution’s mandatory retirement provision.
