The names of four current judges and a law professor from which Gov. Neil Abercrombie can choose the next justice for Hawaii’s Supreme Court has been released to the public, though not by the governor. It was the Judicial Selection Commission that made this important disclosure of its nominee finalists after amending its rules — laudably for the public’s benefit. Until a recent lawsuit forced the openness issue, Abercrombie had maintained that the list disclosure would have a "chilling effect" on future potential prospects, an unconvincing excuse for secrecy.
Abercrombie’s hostility toward openness of the judicial selection process was most puzzling, especially coming from the liberal former congressman. He chose to keep secret the list of the commission’s finalist candidates from which he could choose circuit and higher state judges in January of last year. He criticized his acting director of the Office of Information Practices for embracing transparency, then soon after, replaced her as head of the office.
Last November, Circuit Judge Karl Sakamoto ruled in favor of the Star-Advertiser in a Freedom of Information Act lawsuit seeking the governor’s release of the commission’s list of judicial candidates. Only then, and belatedly, did Abercrombie release names of candidates for Circuit Court judgeships and for a vacancy on the state Supreme Court, which emerged when former Gov. Linda Lingle promoted then-Associate Justice Mark Recktenwald to chief justice. By then, the state Senate had already confirmed Abercrombie nominee Sabrina McKenna to the high court.
This month, for the first time, the Selection Commission on its own released the names of the five candidates on the high court to replace Associate Justice James Duffy, who will be forced to retire upon turning 70 next month.
This kind of transparency allows the public, especially those who might provide pertinent input, to have a voice early on in a very important process: the seating of the fifth justice to state’s highest court. This is particularly valuable when noting that the current court has been split 3-2 on some major recent decisions.
Because of Abercrombie’s forced release of the Supreme Court nominees last time around, this latest list of candidates to replace Duffy looks very familiar.
Four of the five selected by the commission this time are the same as those who were on the list with McKenna: Derrick Chan, 56, chief judge of Oahu’s Circuit Court; Intermediate Court of Appeals Judge Daniel Foley, 65; Craig Nakamura, 55, chief judge of the appeals court; and Oahu Circuit Judge Richard Pollack, 61. Joining them on the list is David M. Forman, 46, a former private lawyer and now interim director of the University of Hawaii law school’s environmental law program.
Full information about the candidates offered by the Selection Commission reveals that McKenna, at the time of her selection, was 53 years old, junior on the list, which means she could sit on the high bench for 17 years before having to hang up her black robe. That could bode well for Forman, as his views are similar to those of the governor. Ideologically, McKenna’s vote has joined Justices Duffy and Simeon Acoba, who is reputed to be the high court’s most liberal jurist.
Things such as retirement age and policy credentials are important factors in any governor’s selection to the Supreme Court. That is the kind of information the public deserves to know and have the opportunity to weigh in on — in the open, not behind a shroud of insider secrecy.
