Time To Elect Hawaii's Judges? Maybe Not Such A Bad Idea

by Robert Thomas, InverseCondemnation, February 2, 2016

The Hawaii Legislature is evaluating a series of bills which, taken collectively, would radically overhaul the way judges and justices are selected for Hawaii's state courts, and retained in office.

Currently, the system is generally modeled on the "Missouri plan," also known as "merit selection." Supreme Court justices and Court of Appeals and Circuit court judges are appointed by the Governor for 10 year terms, and must be selected from a list promulgated the appointed Judicial Selection Commission. The nominee is then confirmed or rejected by the State Senate. District Court judges are appointed from a JSC list by the Chief Justice, and if confirmed by the Senate, serve six year terms. Justices and judges may be reappointed for additional terms, and may serve until they reach 70 years old.

The proposals which the legislature is now considering were summarized in a recent email which we received from the Hawaii State Bar Association:

SB2239/HB2139
Proposes a Constitutional amendment to require that justices and judges be elected to serve 6-year terms and be subject to the consent of the Senate for subsequent judicial terms. Repeals the Judicial Selection Commission.

SB2238/HB2138
Makes conforming amendments to implement Constitutional amendment which establishes judicial elections. Requires the Judiciary, Office of Elections and Campaign Spending Commission to study appropriate methods of implementing a judicial election system in Hawaii, and submit a written report including proposed legislation, to the Legislature 20 days prior to the 2017 legislative session.

SB2420/HB2140
Proposes a Constitutional amendment to amend the timeframe to renew the term of office of a justice or judge, and require the consent of the Senate for a justice or judge to renew a term of office.

In other words, if these proposals are adopted we're going to start electing justices and judges, shorten their terms, and make Senate confirmation only necessary for retention.

At first blush, we agreed with the HSBA's intention to oppose these measures, "UNLESS an overwhelming majority of HSBA members voice their disagreement with the position to oppose." Judicial elections are viewed with suspicion within the legal establishment, and the current system, insulated from direct public choice of judges, seems to be working well enough, doesn't it?

Maybe so, but consider this:

• The public's input currently is very limited. Yes, we elect the Governor whose job it is to select the judges from the JSC list, and the Senators whose job it is to confirm the Governor's choice. And the Governor and the Senate, and the HSBA, and the Chief Justice in turn get to pick the JSC members whose job it is to sort through the applicants and narrow the list down to those whom the commissioners believe are qualified. The public can also come testify at the Senate hearings. But despite this indirect input, the people never get a chance to directly choose those who hold the ultimate power.
• If judges make law -- and in our view there is no question that judges, particularly Hawaii's appellate judges, are making law and creating policy -- then why shouldn't they be subject to direct accountability to the people who are impacted by those laws? In recent memory, the Hawaii Supreme Court has created -- or perhaps the more accurate term is "found" -- in the Constitution rules that a large portion of the citizenry might be surprised were hidden in the document waiting to be revealed, such as same sex marriage, public ownership of water, universal standing, and the like. Don't get us wrong: we are in agreement with much of this agenda, and are only troubled by the process of having unelected wise men and women creating what might be better policy, rather than those accountable to the voters.
• Hawaii is a one-party state, and the executive and legislative branches are politically monochromatic; the differences they have seem pretty minor, with the fighting being between the branches of government, and between the state and the counties over who gets to exercise power and who gets the money. We haven't observed huge policy differences, however. That being so, you would naturally expect that the judges who make it through the current system reflect that dynamic, and we can't recall any true outsiders taking the bench in recent memory. Thus, the process as it currently stands is not designed to accommodate divergent legal viewpoints, even though they may exist in the legal and wider community. If the people want a diversity of views to be considered when creating the law, voting for judges seems like the only way to obtain it, because it is the only way to overcome ossified institutional politics.
• The current process is not completely transparent, despite some recent gains (see here, for example). The JSC operates mostly in secret, and the process and qualifications for getting on the Commission isn't always clear cut. The Senate conducts public hearings, but like many legislative hearings, these seem to be more show than go. The HSBA participates in the process with a recommendation (after an executive, confidential vetting of the candidate), and is only permitted by its own rules to provide a vague, unsupported recommendation of "qualified" or "unqualified," which isn't much help in a true evaluation of a candidate who somehow garners an "unqualified" rating. 
• Judicial elections are not always the free-for-all that they can appear to be. For every Wisconsin, there's a Texas. Maybe we are seeing what appear to be successful implementations of judicial elections with rose-colored glasses, but at least to our outside eyes, this process does seem to work reasonably well in some jurisdictions.

But we're not 100% down with the way the proposals are framed:

• The provision requiring Senate consent to the reappointment after only six years seems designed to keep the Senate's thumb on the Judiciary. In recent years, there have been a few cases highlighting the tension between the Legislature and the courts over which branch gets final say in certain matters, and perhaps these measures are an attempt by the politicians to show the judges just who is the boss. (Hint: it's neither of you, it's us.)
• Six years seems an awfully short time. Shorter terms for elected judges may keep the leash too tight, and make a judge leery of being independent. 

The bottom line to us is that whatever system we have in place to select (anoint) those who are making and enforcing the rules, especially when it comes to creating social policy like the courts now routinely do, the most important thing is to maintain judicial independence while also being accountable to the people whom they serve.

We're not ready just yet to categorically rule out the possibility that electing judges in a public, transparent process, rather than selecting them via an opaque, insider procedure, might be the better way.

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