Hawaii Bar Journal
July 2006 #13.
Judicial Selection in Hawaii
Hawaii State Bar JournalJuly 2006Judicial Selection in HawaiiBy Lawrence S. OkinagaThe heightened levels of both judicial campaign financing and unwarranted attacks on the judiciary have caused increasing concern about their impact on judicial independence. With limited success of judicial election reform efforts through, for example, public financing of judicial elections,1 Hawaii's unique appointive system provides an attractive alternative to other state systems of judicial selection.
Hawaii chooses its judges through a merit selection system.2 A judicial selection commission (JSC) of nine members screens prospective judicial appointees and drafts a shortlist of qualified lawyers.3 An appointing authority makes the final selection from the shortlist, and Hawaii's Senate gives final consent to the nominee.4
At the district court level, the Chief Justice of the Supreme Court of Hawaii is the appointing authority.5 For the circuit, intermediate appellate, and supreme courts, the governor is the appointing authority.6 Sitting judges who wish to retain their seats apply to the selection commission for reappointment and do not face an election.7 Hawaii's unique system poses some special challenges, and Hawaii's voters have not been afraid to modify aspects of the system through constitutional amendments.8 But the system has generally served this state well and enjoys the ongoing support of the legal community and the public.
A Short History of Merit Selection
In America's early years, the states selected judges by appointment, a throwback to the colonial era when the King appointed judges. Populist movements to elect judges gained momentum in the early 1800s, and by the middle of that century, appointive systems were widely viewed as antithetical to popular sovereignty. During the second half of the 1800s, however, some began to question the efficacy of judicial elections, noting that judges were becoming swept up in political machinations.9
By the turn of the century, the wisdom of electing judges was called into serious question. Speaking before the American Bar Association in 1906, Roscoe Pound condemned judicial elections, charging "putting courts into politics, and compelling judges to become politicians, in many jurisdictions, has almost destroyed the traditional respect for the bench."10
In 1913, the American Judicature Society (AJS) was founded with the mandate to promote the effective administration of justice. A key objective of AJS was to help states implement merit selection systems for bench appointments in order to disengage judicial selection from partisan politics. Although AJS's efforts to that end began in the 1900s, it was not until 1940 that Missouri became the first state to adopt a merit plan. Since then, many more states have adopted merit selection, particularly during the 1960s and 1970s. Today, 33 states use some form of the system. Hawaii adopted merit selection in 1979.
At the Constitutional Convention of Hawaii of 1978, the Hawaii State Bar Association, led by, among others, its then-President, Honolulu attorney Dan Case, spearheaded a move to incorporate merit selection into Hawaii's Constitution. The AJS was invited to help construct the plan, and provided vital technical support and substantive assistance in the effort. After substantial debate, the Convention, aided by the effective leadership of Walter Ikeda, Chair of the Committee on the Judiciary, adopted the merit plan. The Rules adopted by the first JSC were patterned after the AJS's Model Rules, modified to suit this state's needs. Implementation of the new system began in 1979.11
Cognizant of the unique nature of its system, Hawaii has not been afraid to make modifications where warranted. Constitutional amendments were prepared and accepted in statewide elections on November 8, 1994. The JSC reviews its Rules, which have the force and effect of law, every two years to determine whether any changes are warranted.12
The Merit Selection Process in Hawaii
When a judicial vacancy occurs, the JSC publicizes the vacancy.13 Lawyers seeking selection, and judges who wish to be nominated to a higher court seat, submit applications to the JSC for review.14 Because highly-qualified applicants might not seek out judicial appointments, the JSC can also actively encourage people to submit applications.15
Applicants may be asked to provide detailed and extensive background information, all of which is kept confidential.16 After an initial screening, the Chair of the JSC, who is elected by the JSC members, may direct one or more members to conduct further investigations into the applicant's background and qualifications, and report back to the entire...