The ever-present need for transparency in the process of judicial selection is underscored with last week’s public release of a finalists list for a seat on the Intermediate Court of Appeals, the second-highest court in the state behind the Hawaii Supreme Court.
Among the six nominee names sent to Gov. David Ige is that of his campaign manager and close friend since Highland Intermediate days — Ige played the tuba and Keith Hiraoka jammed on tenor drum in the Pearl City school’s band.
Hiraoka, a law partner at Honolulu’s Roeca Luria Hiraoka firm, resigned as campaign manager Wednesday after learning of his finalist selection. And Ige, who is prepping for extensive interviews with each of the candidates, is enlisting James Duffy, a retired associate justice of the Hawaii Supreme Court, to advise him on the appointment.
Such scrambling to avoid the potential appearance of nepotism and other impropriety serves as strong evidence that judicial selection must be open to public scrutiny.
In August 2011, when former Gov. Neil Abercrombie refused to disclose the names of nominees for appointments as state judges, the Honolulu Star-Advertiser sued, and about three months later Circuit Judge Karl Sakamoto ruled that Abercrombie was required to make the names public under Hawaii’s open records law.
Officially known as the Uniform Information Practices Act, or UIPA, the state open records law dictates that government documents are presumed to be public unless the government demonstrates a compelling reason to withhold them.
Abercrombie, a Democrat, had argued that releasing the names of unsuccessful applicants would discourage people from applying for judgeships. But Sakamoto ruled the administration failed to provide proof of that.
Abercrombie’s stance bucked past practices of Republican former Gov. Linda Lingle and Democratic former Gov. Ben Cayetano, both of whom released the names on Judicial Selection Commission candidate lists. In the aftermath of Sakamoto’s ruling, the selection commission rightly amended its rules so that applicants’ names are now made public when sent to the governor.
This time around, in behind-closed-doors deliberations, the nine-member selection committee weighed 16 applications — three from judges, six from private attorneys and seven from attorneys with the government.
Prospective nominees had to submit an application and recommendations to the commission, which consists of two members appointed by the governor, two by the Senate president, two by the House speaker, two by the Hawaii State Bar Association and one by the chief justice of the Supreme Court. Just one was appointed by Ige. (Commissioners serve six-year terms.)
Ige is now confronted with a difficult task. Just like the other finalists, Hiraoka deserves a fair shake. The trouble is that in this case, the appearance of fairness is nearly impossible.
Even though several other people are involved in the selection process — finalists need at least five votes from selection commission members. And even though the top candidate will be subject to Senate confirmation, a governor who picks a longtime close friend for such a post can expect criticism. It’s inevitable.
In such cases, the potential stink of nepotism or related concerns can diminish when the selection process is as transparent as possible.
The governor must fill the post, left vacant by retired Associate Judge Daniel Foley, by Feb. 3. Over the next several weeks, while Ige sifts through his options, the public should make the most of this opportunity to weigh in on the nominees and the selection process. Judges on the court can serve until they are 70 years old. Annual salary for judges is set at $202,596.
Comments may be submitted online at governor.hawaii.gov (click on “Contact us” on the menu bar, then on “Contact the governor”).
