Unlike most states, Hawaii does not elect its attorney general or judges by popular vote. The Legislature is considering proposing amendments to Hawaii’s Constitution that would reverse this practice — an ill-advised idea.
Under Senate Bill 2418, voters would decide whether to elect Hawaii’s attorney general every four years.
Under Senate Bill 2239, voters would decide whether to elect Supreme Court justices and other judges to six-year terms; the judges would be subject to consent by the state Senate for a subsequent term.
Proponents of an elected attorney general argue that elections would ensure that the chief legal officer of the state would act in the best interests of the people, and not at the behest of the governor who appointed him or her.
It’s true that elected attorneys general are the norm; 43 states have elected attorneys general and only five states, including Hawaii, give the governor the authority to appoint the AG. In Hawaii, the appointee is confirmed by the Senate.
“There has always been the issue of whom does the AG serve,” said state Sen. Donna Mercado Kim. “Does the AG serve the governor who appointed him, or the Legislature, or both?”
It’s a reasonable question. The attorney general serves the interests of the entire state, but is appointed by the governor, is a member of the governor’s Cabinet, and holds a term that ends at the same time as the governor’s. Even so, the governor can’t fire the AG; only the Senate can.
The bigger problem is an elected attorney general who acts in his own interest, and is prey for more dubious influences — namely, political donors.
Among other duties, Hawaii’s Attorney General’s Office, through its legal opinions, exercises considerable influence over how state laws are interpreted; it pursues civil and criminal cases in which the state is involved; and it represents state officials in legal actions.
In other words, a state attorney general who needs votes can be a ripe target for special-interest pressure, as applied through campaign donations.
It’s not just theoretical. A major 2014 investigation by The New York Times uncovered concerted efforts by lobbyists and lawyers “who use campaign contributions, personal appeals at lavish corporate-sponsored conferences and other means” to persuade state attorneys general to “drop investigations, change policies, negotiate favorable settlements or pressure federal regulators.”
Furthermore, the public’s choice for an attorney general would be limited to those willing to run and endure the rigors of a political campaign. It’s a safe bet that many of the state’s most highly qualified legal minds would pass.
All of these concerns hold true for Hawaii’s judges as well. On the mainland, a majority of states hold some type of election for judges and justices. Among state supreme courts alone in 2013-14, election spending exceeded $34.5 million in 19 states, according to The New Politics of Judicial Spending Report.
Hawaii’s current system makes better sense: most judges are appointed by the governor from a list of names drawn up by a selection commission and ratified by the Senate. Judges and justices serve a fixed term of 10 years (six years for district court judges) — with ratification for another term decided by the commission. The system is designed to insulate the Judiciary from political pressure, so the law can be interpreted and applied impartially and fairly. It works fairly well.
In fact, if the Legislature is concerned about the independence of the attorney general, it should consider choosing and retaining the AG in the same manner as Hawaii’s judges.
Hawaii’s judicial system only works if it remains independent of the influence of partisan politics and special-interest pressure. Let’s keep it that way.