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A proposed constitutional amendment that would scrap the state’s nearly four-decade old process for selecting judges on the basis of merit remains alive in the state Senate, pending further consideration next week.
Senate Bill 2239, one of three related measures introduced by Maui Sen. Gil Keith-Agaran, would require all judges, as well as justices of the Supreme Court, to be elected to initial six-year terms by popular vote. Judges reapplying for additional terms would be subject to confirmation by the Senate, rather than the current review by the Judicial Selection Commission. Meanwhile, the proposed amendment would completely eliminate the commission, which currently conducts confidential screenings of those applying for judicial positions, and later decides whether individual judges will be renewed for additional terms.
Companion bills filed in the House died without hearings.
The judicial election bill was originally given a double referral to the Senate Judiciary and Labor Committee, chaired by Keith-Agaran, and then on to Ways and Means. However, just a few days later, it was re-referred to Judiciary alone.
Following a Feb. 10 hearing, the committee deferred its decision on the bill until March 2, just two days before the next legislative deadline.
Keith-Agaran’s second measure, Senate Bill 2420, also proposes a constitutional amendment that would require the consent of the Senate before a judge could be reappointed for an additional term. The bill was approved by the Judiciary Committee on Feb. 10 in a 4-1 vote, with Sen. Laura Thielen dissenting. However, it has not yet been reported out of committee to the full Senate.
A third bill, Senate Bill 2238, requiring studies of how judicial elections would be handled by the Judiciary, the Office of Elections, and the Campaign Spending Commission, was also approved by the committee and referred on to the Ways and Means Committee. WAM has not taken any further action, with the important “first decking” deadline looming on March 4.
Although the three bills take different approaches and target slightly different parts of the current process for naming judges, they have one thing in common. There has been virtually no testimony submitted in favor of any of the measures, while all three have been strongly condemned by the Judiciary, the Hawaii State Bar Association, several legal organizations, as well as a long list of former judges, former Bar Association presidents, and former members of the judicial selection commission.
According to a commitee report on one of the bills: “Your Committee received testimony in opposition to this measure from the Judiciary; Judicial Selection Commission; Office of the Public Offender; Hawaii State Bar Association; Family Law Section of the Hawaii State Bar Association; West Hawai‘i Bar Association; Kauai Bar Association; Hawai‘i County Bar Association; Hawai‘i Women Lawyers; American College of Trial Lawyers; Justice at Stake; American Judicature Society; Common Cause Hawaii; League of Women Voters of Hawaii; American Civil Liberties Union of Hawaii; Hawaii Filipino Lawyers Association; Hawaii Government Employees Association, AFSCME Local 152, AFL‑CIO; and fifty individuals.”
Similar testimony was received on all three bills.
There were several common themes running through the extensive testimony.
Testimony generally credited the Judicial Selection Commission with doing a thorough and rigorous job of vetting candidates.
Jackie Young, currently the commission’s vice-chair, presented testimony describing the commission’s 28-page application, which collects information on personal, education, and professional background and experience, legal cases of all kinds handled, including at trial and on appeal, along with financial and medical records as well as character references.
As noted by long-time Honolulu attorney David Fairbanks, also a former chair of the commission, no study or data has been presented to support the idea that “the present retention process does not work and should be changed.”
The merit-based system for selection of judges came out of the state’s 1978 Constitutional Convention.
“The convention’s judiciary committee was primarily concerned with the potential for political influence and abuse in the selection system,” according to the Judiciary’s testimony. The Con-Con voted down proposals for the election of judges, and also defeated an amendment to hold retention elections after initial appointments.
“Delegates expressed concern regarding the lack of voter knowledge about candidates and the potential for judges to decide cases on the basis of popular appeal, rather than on what is right,” the Judiciary also noted.
Much of the testimony pointed to the damaging impact of the money that has been flooding into elections, including judicial elections, from special interests, unleashed by the ruling by the U.S. Supreme Court in the Citizens United case.
Spending in judicial elections has been rising rapidly in those states that rely on elections, with out of state and special interest money playing a new and critical role.
The Kauai Bar Association, for example, told the committee “that judicial elections, and additional senate confirmation for retention, threaten the right to an impartial judiciary and would transform the bench into another body controlled by large moneyed special interests.”
“Elections would undermine public confidence in an impartial judiciary,” their testimony continued. “The public could well have the perception that litigants could use campaign contributions to promote the election of judges favorable to their interests.”
The clear message seemed to be: If you don’t like special interest money changing the shape of your legislatures or influencing presidential elections, why would you open the door for the same special interests to choose your judges?
A letter signed by attorney Calvin E. Young and 14 other former presidents of the Hawaii State Bar Association argued strongly that “the Judiciary is not a vehicle for public input, and justices and judges should not take public opinion into account when making decisions.”
“A judge’s primary duty is to be a neutral arbiter of justice, and to apply the law in a way that is correct and fair for all parties,” their letter said. “If judges take public sentiment into account when they make decisions and issue rulings, there may be dangerous pressure placed upon judges for them to rule in a manner that might be politically beneficial or popular, but not legally correct.”
In the end, there’s really only one mystery here. And that is why Sen. Keith-Agaran has pushed these bills at this time.
Similarly, giving the Senate the veto over judicial reappointments was widely seen as representing a further politicization of the courts.
State Bar Association testimony expressed concern that replacing the confidential judicial selection process with a Senate re-confirmation “would politicize the retention process by providing the opportunity for a referendum on how judges have decided cases during their term in office.”
In Senate hearings “each judge may be called upon to explain his or her decisions to the Senate and to respond publicly to those persons or groups whose special interests may have been affected by his or her decisions,” the Bar testimony said. “Much like judicial elections, this process diminishes judicial independence and adversely affects the separation of powers as judges would need to be mindful of and deferential to the legislature and popular opinion.”
Opponents of the bills also point out that elected officials already appoint six of the nine members of the selection commission and, as a result, have indirect influence in the process. Two each are appointed by the governor, Senate president, and House speaker. The Hawaii State Bar Association appoints two, and the Chief Justice has the remaining choice.
In the end, there’s really only one mystery here. And that is why Sen. Keith-Agaran has pushed these bills at this time, and why they’ve been allowed to get this far in light of the solid testimony across the legal spectrum in opposition. There’s been no public push in Hawaii favoring the election of judges, and the testimony failed to show either support for the idea, or shortcomings in the existing, merit-based system.
If Keith-Agaran or another insider is trying to send a message, it’s hard to decipher either the message or its intended recipient(s). The biggest loser if any of the election ideas move forward would be the governor, who would be stripped of his power to appoint judges and, more importantly, Supreme Court justices. The Judiciary would also be a big loser, with its independence threatened. The biggest winner would be the Senate, which would enhance its political power.
What does this all mean? Hard to say.
Perhaps the whole election scenario is simply a smoke screen to make Senate control of the reappointment process seem more palatable. Maybe it’s an expression of Senate frustration after being caught up in a couple of controversial judicial appointments, which can’t be a pleasant experience. Or perhaps this is just saber-rattling because some key player in the Senate didn’t succeed in getting one of their personal choices through the Judicial Selection Commission and on to a short list of nominees.
All in all, it’s both puzzling and disturbing that the election proposals have gotten as far as they have. It’s time to let them die without wasting further time and effort.