When the Board of Directors of the Hawaii State Bar Association recently rated Judge Michael Wilson as “unqualified” to serve as a member of the Hawaii Supreme Court, based on its confidential review, it placed bar association representatives, legislators and the nominee in very awkward positions.

They all had to deal with the allegations, however veiled, but had little real data to work with because the substance and sources of many charges remained behind a curtain of confidentiality.

Although key legislators blamed the bar association for bringing forward a negative rating based on confidential allegations, I believe the blame should be placed squarely on the judiciary’s traditions of secrecy.

The secrecy exists on two levels. First, there’s the secrecy of the nomination process itself. When judicial vacancies are announced, applications of potential nominees are screened by the Judicial Selection Commission through a secret process. The names of potential nominees remain confidential throughout the commission’s screening process and are publicly disclosed only after a “short list” is approved from which the governor, or the chief justice, will make their selection.

Attorney Barry Sullivan, in a Star-Advertiser op-ed (that is behind a paywall), pointed out that because the commission’s process is secret, it cannot solicit information about those being considered for judicial appointments.

“It does not publish the names of its applicants,” Sullivan wrote. “There is no process to solicit input about those applicants from members of the Bar or public. The JSC therefore is not likely to hear negative input.”

The short lists are prepared and sent forward by the Judicial Selection Commission without the benefit of any real opportunity to find out if there are any red flags that might warrant further scrutiny.

The second level of secrecy involves the evaluation of judges. Wilson sat as a Circuit Court judge for nearly 14 years, and over that period was subject to several job performance reviews.

In many other employment settings, someone applying for a higher position — or those reviewing the applicant — could simply refer to those prior job evaluations in order to assess external criticisms. But in Hawaii, judicial performance reviews are considered highly confidential, according to the rules set by the Hawaii Supreme Court.

Job performance data are shared only with the judges themselves, and perhaps with the Judicial Selection Commission, but only at its written request. Neither the broader legal community, nor the public, have access to information about how judges are handling their jobs — which perform in stellar fashion, which are good, and which, if any, are marginal or inadequate?

In Wilson’s case, members of the Senate were unable to refer to the results of his prior judicial performance reviews, so neither they nor the public will know whether those official records would have supported or rebutted allegations about his work ethic and attitudes toward women.

There is a longstanding and ongoing tug-of-war between those in the legal community and the general public, who believe more openness is needed to retain (or perhaps regain) public confidence and trust in our judges and the judicial process, and those who jealously guard access to judicial information due to concern over the threat of eroding judicial independence.

The notion of “judicial independence” isn’t easily defined, according to a 2008 report by a special committee on judicial independence and accountability formed by the Hawaii Chapter of the American Judicature Society.

“Judges must have the ability to make decisions free of corrupt influence, bias, prejudice, politics, campaign financing, and coercion, and they should be able to decide on the basis of the facts and the law at hand without legislative or executive interference,” the report advised.

However, the report also found that a lack of public confidence in the accountability of the judicial branch poses its own threat to judicial independence, and the report acknowledged the committee had debated whether there is “too much confidentiality/secrecy in the judicial selection process and whether opening up some aspects of the process to further public access would invigorate public confidence….”

As early as 1991, the bar association proposed a more open evaluation process, only to abandoned it due to strong opposition from justices of the high court, led by then-Associate Justice Ronald Moon, who later served as chief justice from 1993 to 2010.

The bar association considered a similar proposal in 1999 that would have resulted in public disclosure of judicial evaluations. It was again defeated.

A second report done at the same time by the American Judicature Society tried to summarize the arguments for and against more public disclosure of evaluations.

“Shielding poor judges by use of anonymity, losing public confidence in the quality of the judiciary by hiding behind anonymous report cards on judges and the inability of the (Hawaii State Bar Association) to defend judges unfairly criticized by the media or the public are some of the reasons for publishing individual report cards on judges,” the report stated.

Reasons cited for keeping the evaluations of individual judges confidential included possible “loss of judicial independence, deterring the potential pool of new judicial applicants and applicants for retention, and concern over possible prejudice to judges resulting from publication of evaluation results from anonymous polling….”

At that time, “after much consideration,” the committee came down on the side of continued secrecy.

The current evaluation system involves cooperation between the judiciary and the bar association. Attorneys who have appeared before them evaluate all full-time judges, and a smaller number of part-time judges.

“The attorneys are asked to respond confidentially to a series of questions applying scores that range from one for Poor to five for Excellent and to provide any helpful written comments,” according to the judiciary website.

“Attorneys are asked to rate trial judges on their legal ability, judicial management skills, comportment, and settlement and/or plea bargain ability,” according to a summary of the process prepared by the Institute for the Advancement of the American Legal System at the University of Denver. “Attorneys are asked to rate appellate judges on aspects of their fairness/impartiality, written opinions, and oral argument.”

A third-party company then compiles the responses, and the results are turned over to the chief justice. The process shields the identities of attorneys who complete the surveys, and maintains the confidentiality of the results.

A summary of the evaluation findings, without any individual results, is prepared and distributed only to law libraries in the state, but is not made available to the public on the judiciary website.

There have been proposals to expand the evaluation process by also soliciting and considering the views of court personnel, members of juries, courtroom observers, plaintiffs, and others who deal with judges. This would expand public participation independently of whether or not the results were subject to additional disclosure. I’m sure there are other half-steps towards openness available.

States in which judges are elected usually provide more information to the public concerning the on-the-job performance by individual judges, according to a state-by-state summary prepared by the National Center for State Courts. When the public has direct electoral control over the selection of judges, opposition to public disclosure evaporates and a priority is suddenly placed on getting as much specific information as possible about judicial performance into voters’ hands.

I’m not suggesting that a move to judicial elections would be desirable, especially given the increasingly dominant role of money in contemporary elections. But in a state like Hawaii where judges are selected through a merit-based process, rather than elections, it would seem that continuing the tradition of secrecy will eventually prove self-defeating and lead to eroding, rather than supporting, public confidence in the fairness of the system.

In light of the problems that became so evident in the Senate’s consideration of Michael Wilson’s nomination, it would seem a good time for a proactive judiciary to take another look at how to provide additional public participation and disclosure in both the selection and evaluation of judges.

Read Ian Lind’s blog at iLind.net.