Ben Lowenthal: Why Hawaii Needs Transparency In The Process Of Filling Judicial Vacancies - Honolulu Civil Beat

About the Author

Ben Lowenthal

Ben Lowenthal grew up on Maui. He earned his undergraduate degree studying journalism at San Francisco State University and his law degree at the University of Kansas. He is a deputy public defender on Maui practicing criminal defense in trial and appellate courts. He also runs “Hawaii Legal News,” a blog covering Hawaii appellate courts. The author's opinions are his own and don't necessarily reflect those of Civil Beat. You can reach him at

A corrupt Kansas City politician indirectly created the model for judicial selection.

The retirement of both Associate Justices Paula Nakayama and Michael Wilson has created two vacancies on the highest court in the state. Not only that, but more vacancies are anticipated throughout the district and circuit courts.

And for an ironic moment, there was even a vacancy on the Judicial Selection Commission, which is integral to filling judicial vacancies. That was quickly resolved when lawyers last month held an online election to determine the newest member, retired Justice Simeon Acoba.

The Judicial Selection Commission occupies an important but oftentimes mysterious place in our state’s constitutional system. It is designed to prevent favoritism and politics in the business of picking judges.

And yet, its work for most of its 40-year history has been in utmost secrecy. In some ways it still is.

The commission was established in 1978 with the watershed Constitutional Convention. While Hawaii has never resorted to electing judges, before the commission’s creation, the governor had full discretion to pick a nominee.

It could be his friend. It could be her personal attorney. Nobody really had a say or a check on the governor’s nominating power — except for the Senate, which required confirmation.

The commissioners themselves are chosen by different institutions. The governor appoints two, the Senate president and speaker of the House each pick two, the chief justice gets one and the bar association elects two. Only four can be lawyers, and at least one must live on a neighbor island.

When a judicial vacancy is announced, the nine-member commission calls for applicants, interviews them and trims down the potential nominees to a short list of four to six applicants. Once a list is created, it is sent to either the governor or the chief justice of the Hawaii Supreme Court.

The retirement of Associate Justices Paula Nakayama and Michael Wilson has created vacancies on the bench of Hawaii’s highest court. A similar scenario occurred in 1979. (Cory Lum/Civil Beat)

The constitution after 1978 also split up the governor’s nominating power. True, the governor still picks judges for the Circuit Courts and the Intermediate Court of Appeals and the Hawaii Supreme Court. Now the chief justice of the Supreme Court picks District Court judges, who hear far more cases and interact with the public more frequently.

Once the list is submitted, the governor has 30 days to appoint someone from that list. The governor cannot reject everyone and demand a new list. If no appointment is made, the commission appoints a nominee. That has happened, by the way.

In 2012, Gov. Neil Abercrombie received the list for the circuit court on Maui. He nominated Wailuku attorney Peter Cahill. The only problem was he missed the 30-day deadline by two days. The nomination power went to the commission, which got the governor’s hint and quickly picked Cahill.

Once the nominee is chosen, the Senate must consent. Here’s what the constitution says about the Senate’s consent:

“If the senate fails to reject any appointment within thirty days . . . it shall be deemed to have given its consent to such appointment. If the senate shall reject any appointment, the governor shall make another appointment from the list within ten days thereof. The same appointment and consent procedure shall be followed until a valid appointment has been made, or failing this, the commission shall make the appointment from the list, without senate consent.”

The constitution’s wording raised an interesting question back in 1979. The late state senator and attorney, Dennis O’Connor Sr., believed the Senate’s consent could be implied. The only Senate action required by the constitution is in rejecting the nominee.

Senate hearings, questioning the nominee and a vote on the Senate floor aren’t required to confirm. O’Connor noted that a crafty chair of the Senate Judiciary Committee could let the nominee languish for 30 days without a hearing and presto, consent is given, and the nominee is a judge. No one’s taken that route and it’s not likely to happen any time soon.

This is how we have been picking judges for the last 40 years or so, and for years secrecy before the commission was paramount.

No one knew who applied and who made it on a nominating list. Change has been gradual. It would take another constitutional amendment to make the list itself available to the public. And recently, the commission has changed its rules to make the names of applicants to appellate courts available to the public. Applicants for trial courts — the circuit and district court judges that hear the bulk of cases in the state — are still confidential.

Tom Pendergast was a political power broker from Kansas City, MO, who indirectly helped create the model for the judicial commission in use today. (Wikimedia Commons)

This intricate process is designed to keep overt political influences out of the business of picking judges. This method did not just come out of thin air. Long before the ’78 Con Con, there was Tom Pendergast, a political heavyweight in Kansas City, Missouri.

At the start of the 20th century, Pendergast moved to Kansas City and got into politics. He networked and harnessed power to create an unstoppable machine that took over the city, line his pocket and feed his gambling addiction. His influence over politicians, construction companies and labor was the stuff of legend.

By the 1930s, his influence was growing beyond Kansas City. His people were at all levels of power in the state approving business deals with his blessing, placing his people in more positions of power and allowing him to skim money from public coffers.

Because judges in Missouri were elected and the Pendergast influence was starting to reach the judiciary. In 1937, about 80 Democrats and Republicans met at the Tiger Hotel in Columbia, Missouri. There, they came up with a way to get judges selected based on merit — not on who they knew or what Pendergast wanted.

In 1940, Missouri amended its constitution to create the first commission in the country designed to pick judicial nominees on merit. The Missouri Plan was viewed as a pushback against Pendergast’s influence. (Pendergast would later be convicted of tax evasion for failing to pay taxes on a bribe and sent to federal prison.)

Now 38 states have adopted that idea in some form or another.

When we adopted our version in 1978, it was a slow start.

The Judicial Selection Commission was supposed to be up and running no later than April 1, 1979. But no lists came out of the commission that spring.

Gov. George Ariyoshi in 1977
Gov. George Ariyoshi was respectful of the idea of the Judicial Selection Commission that came out of the 1978 Constitutional Convention, even though the process was initially slow.

Judicial vacancies were piling up and two Supreme Court justices had retired. While the governor could have filled those slots the old way, Gov. George Ariyoshi, respectful of the spirit behind the new constitution, waited for the commission to deliver its lists. This put even more pressure on the commission to get to work.

The commission received 129 applicants for 15 judicial vacancies, but the summer ended without a single list going to the governor.

Ariyoshi received the first list for the supreme court at the end of November. Over the next two months he announced his pick for an associate justice, the Circuit Court Judge Herman Lum, and in the new year nominated labor lawyer, Edward H. Nakamura, from a second list. Both were confirmed by the Senate that year — nearly two years after the constitutional amendment became law.

With anticipated vacancies in the district and circuit courts and the two empty seats on the Hawaii Supreme Court, it feels reminiscent of the summer of ‘79. This time, however, we know who has applied and the Judicial Selection Commission invites public comments on the 13 candidates.

All nine commissioners have terms that run well into 2024. They’ve got their work cut out for them.

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About the Author

Ben Lowenthal

Ben Lowenthal grew up on Maui. He earned his undergraduate degree studying journalism at San Francisco State University and his law degree at the University of Kansas. He is a deputy public defender on Maui practicing criminal defense in trial and appellate courts. He also runs “Hawaii Legal News,” a blog covering Hawaii appellate courts. The author's opinions are his own and don't necessarily reflect those of Civil Beat. You can reach him at

Latest Comments (0)

Mr. Lowenthal, well written article. Maybe, as a State...we have come to a cross roads to start the process of looking into a public policy of having public elections for judges.Keep up the good work Ben!

jami_maui · 3 months ago

A most excellent choice in retired Justice Simeon Acoba. Overall, there needs to be much more transparency in judicial selection and tracking their ongoing performance, weeding out substandard performing judges. No doubt the district court dockets are jam packed. Inexperienced district judges are often overwhelmed and rush through cases on a daily basis, the result being substantial justice not being served, especially to the most common and vulnerable litigants, the self-represented. District court case calendars should be individually rostered rather than multi-component courtrooms. Separate the TRO, Landlord-Tenant cases, criminal, civil, etc , rotating judges focusing upon a specific area of law during the period assigned. Too often the judge, and their clerks, are unfamiliar with the rules and case law at hand and are forced to juggle criminal and complicated civil cases on the daily cattle-call calendar. This is most often apparent in Landlord-Tenant cases of which should be assigned to a knowledgeable and wholly separate tribunal.

HuliOpu · 3 months ago

Judges have more power over other people’s lives than do individual members of any other group, including legislators and council members. Because power tends to corrupt, we need a transparent system of judicial selection and accountability. The current systems might look good from a distance, but it’s actually quite political … not that there’s anything wrong with that.

enoughisenough · 3 months ago

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