Hawaii Gov. Neil Abercrombie will introduce his Supreme Court appointee today at noon. The public may never know who the other nominees were.
The move is legal, but breaks with recent tradition.
Unlike his predecessor, Gov. Linda Lingle, Abercrombie did not release the list of five names he received from the Judicial Selection Commission earlier this month. As a result, he couldn’t seek public comment before announcing his pick to fill the vacancy created when Mark Recktenwald was elevated from Associate Justice to Chief Justice.
Spokeswoman Donalyn Dela Cruz told Civil Beat the governor believes revealing the list of names would frustrate efforts to get quality nominees.
“The Governor believes getting the names out is detrimental to attracting prospective judicial applicants. His approach in making judicial appointments is to ensure the confidentiality of these applicants,” she said in an e-mail to Civil Beat, repeating the rationale she provided earlier to the Star-Advertiser.
Civil Beat already has one appeal pending with OIP that sheds light on the rules governing judicial nominees. Our request for the correspondence between Gov. Linda Lingle and the Judicial Selection Commission remains unfulfilled.
In pursuing those records, Civil Beat learned that while the deliberations of the Judicial Selection Commission are required by law to remain confidential, governors and chief justices have recently followed the practice of releasing the list of potential appointees.
But they’re not required to do so.
An OIP opinion letter [pdf] authored in 2003 states clearly that the governor is not required to release the list of names before announcing his or her appointee. Releasing the list before announcing the appointee “raises the potential for injecting partisan politics into the selection process and for manipulation of the appointment system,” the letter says, and doing so “could frustrate the appointing authority’s legitimate government function of making a judicial appointment.”
When it comes to releasing the list of names after the appointee is confirmed by the Senate, OIP said “the public interest in disclosure outweighed the privacy interests of the nominees, and the disclosure of the nominees’ identities did not result in a clearly unwarranted invasion of personal privacy.”
But ultimately, it’s up to the governor. In reaching that conclusion, the OIP opinion cites a 1993 Hawaii Supreme Court decision.
“It is within the sole discretion of the appointing authorities whether to make public disclosure of the JSC’s lists of judicial nominees,” the court wrote in its decision in Pray v. Judicial Selection Commission.
Governors and Supreme Court chief justices have handled the decision differently. The Star-Advertiser reported that Gov. Ben Cayetano share the names after his appointees were made public. The paper said former Govs. George Ariyoshi and John Waihee never shared the names. A spokesman for Recktenwald, who has’t appointed a district judge yet, told the paper he will follow the practice of his predecessor, Ronald Moon, and make the lists public and seek public input before making his decision.
“I’m worried that it signals the priorities of this governor’s administration. To those inside the 5th floor bubble, it might sound good right now. But a bad attitude towards openness and public participation is the kind of thing that is going to cause big headaches for Neil before too long,” Lind wrote. “Hopefully, he’ll see the light, or, as we say, the sunshine.”
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