Here comes the judge … shhh
Retired Circuit Judge Eden Elizabeth Hifo has made the first extensive public defense I’ve seen of the secrecy surrounding Gov. Neil Abercrombie’s judicial appointments, which I covered in my Star-Advertiser column last week.
In appointing Sabrina McKenna to the Hawai‘i Supreme Court, Abercrombie refused to disclose the names of the other candidates sent to him by the Judicial Selection Commission, from whose list he is required to choose.
The governor essentially said that the lawyers’ right to privacy is more important than the public’s right to know, breaking with the practice of Govs. Linda Lingle and Ben Cayetano of releasing the names — and in Lingle’s case, seeking public comment before making her appointment.
Abercrombie is going back to the dark days of Gov. John Waihee, when the secretive and unethical dealings of the Judicial Selection Commission figured prominently in the Bishop Estate scandal of the late 1990s.
The heart of Hifo’s argument is that lawyers who apply to be judges need privacy so their clients and partners don’t get huhu at them. She blames the sunshine for a decline in judicial applicants.
We want to encourage competent, experienced attorneys to offer themselves to the bench without risking damage to their careers if they should not be chosen. …
In recent years I know of four highly qualified attorneys, two women and two men, from three different and well-respected law firms, who were nominated for judgeships but not appointed. None of them works for those firms today.
In each case at least one of their partners retaliated against them for their willingness to leave the firm to join the judiciary. … In each case, clients learned from the public disclosure that the attorney was willing to leave private practice, and some clients expressed concern about finding a new attorney or law firm.
So basically, she’s arguing for the right of lawyers to deceive their clients and partners in order to advance their own interests.
I don’t know about you, but if I had a big date in court coming up that my life might depend on, I would certainly feel entitled to know if my lawyer planned to bail on me.
Locking the public out of the judicial selection process isn’t the answer here; the answer is for the state bar to enact rules to prevent firms from unreasonably retaliating against lawyers who offer themselves for public service — much like employers must make reasonable accommodation for those who participate in the military reserves.
I respect Hifo’s work as a judge and former journalist, but I’m sorry, the right of attorneys to mislead their clients and partners doesn’t trump the public’s right to fairly evaluate the performance of the governor and Judicial Selection Commission in handing out robes to jurists who will lord over us for 10 or 20 years.
Before local lawyers feel too sorry for themselves about the modest amount of public scrutiny we’re asking for, they should remember that in many other states, lawyers who want to be judges must put their names on public ballots.