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.

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21 Comments on “Here comes the judge … shhh”

  1. Alan Sarhan Says:

    Sorry, but I think you’re off base here, Dave. Remember, we’re talking about people who did NOT get the public job. Would you support a law that everyone in any sector who applies for a new job must have that be made public? I think lots of people don’t want their current boss, or friends, or whoever, to know they applied for a job. Some don’t care; let them tell everyone. But someone who applied for a job and did NOT get it? I think they may have legitimate reasons for wanting privacy. I doubt you’d like a law that requires it for journalists.

  2. David Shapiro Says:

    Alan, the difference between this job and other jobs is that there is a constitutional requirement that judges be picked from a list provided by the Judicial Selection Commission. The public has a right to fairly evaluate how the commission is doing its job and whether there is any bias or political agenda in the candidates it puts forth. We also have a right to evaluate the picks the governor makes from the choices given him. This is essentially a substitute for the public election of judges, and the public’s need for transparency overrides privacy concerns. When there was no transparency, we got the Bishop Estate scandal. These are extremely powerful positions and there needs to be some measure of accountability. If the governor and the lawyers take away what little transparency there was and what little role the public had in the vetting of judges, perhaps we’re going to have to look at joining other states in taking over the vetting 100 percent by electing our judges.

  3. hugh clark Says:

    Obviously, meany miss the point, including our new governor. Openness beies secrecy, chicanery and worse.

    If we know who else was vetted and recommended we can be infinitely more comfortable with the ultimate choice.

    I have no quarrel with this selection but wonder who might have been a beter choice. I was no fan of Lingle and seldom failed to share that fact. But she was right in her practice of full disclosure. My regret is hat she was not as forthcoming on so many other matters, despite her campaign promise of transparency.

  4. Michael Says:

    If one is applying for a new job, of course the old boss will be contacted in finding out why one left the job or the reason one is about to leave. Each employer after Uesugi’s incident with Xerox clearly wants to know of a person’s past history. Security reason.

    Governor Abercrombie must have a reason for his choice. I have to trust his choice. If his choice is bad and there are others who are better qualified.
    Who Knows? The good or bad choice made will always be questioned by some. I don’t ask for miracles over night, I just want to see a Governor who tries. One who listens. One who cares about Hawaii.

    Who qualifies to Judge a Judge?

  5. Kolea Says:

    I gotta agree with Judge Hifo and Alan Sarhan on this one. Dave, I think you are overlooking a key part of her argument. If you force people to jeopardize theri jobs in order to apply, you are going to have a much smaller pool of qualified applicants. Your only response to this point is “tough”?

    Judge Hifo’s argument points to very concrete, very real damage to both the applicants and the public interest, by losing qualified applicants. I suggest that point is worthy of consideration. On both counts.

    To that negative impact, you counterpose the value of you, me and a few other policy wonks having fodder so we can kibitz from the sidelines?

    You invoke the word “constitutional” to lend gravitas to your argument. But I don’t think there is a constitutional right to kibitz on judicial appointments before they are announced.

    And you play it coy with your reference to the election of judges. Speak up. Tell us straight. Do you really think the election of judges is an improvement over our current judicial selection process?

  6. David Shapiro Says:

    Kolea, to dismiss well-founded concerns about transparency in filling some of our most powerful positions as a desire to kibitz is inane. You overlook a well-documented history of corruption when the judicial selection process was conducted entirely in secret. A lot of blood was spilled by a lot of people to try to prevent it from happening again and it’s discouraging to see the progress in gaining transparency just thrown away.

    If it was the other way around and a Republican governor came in and threw out a measure of transparency introduced by a Democratic governor, you would be screaming bloody murder. You are contradicting the reasoning you offered yourself in arguing for more transparency in filling legislative vacancies.

    I suggested an alternate way to address the concerns raised by Judge Hifo without stripping the public of the ability to monitor the judicial selection process. It is completely within the power of the legal profession to fix the problem she raises by policing itself. Former CJ Moon publicly released the JDC lists and current CJ Recktenwald says he’ll do the same. They’re better plugged in to the legal community than the governor and obviously they don’t share his view that the lawyers’ privacy concerns outweigh the public’s right to fairly monitor the conduct of some of our most important business.

    On election of judges, my first choice would be an appointment system with enough transparency to allow the public to monitor the fairness, honesty and effectiveness of the process, which we’ve had for most of the last decade. But if it comes down to a choice of politicians and lawyers picking judges in total secrecy or voters picking them by public elections, I’d probably advocate for the latter.

    Finally, the legal community is far from unanimous in agreeing with the position of the the governor and Judge Hifo. I’ve had a number of prominent attorneys and a judge who I’ll bet will be on the promotion list in the current administration pat me on the back and say “right on!” The fact that our current legal environment is such that they’re reluctant to speak out publicly is all the more reason why the public needs the transparency to monitor a system that won’t monitor itself.

  7. charles Says:

    So should the governor divulge who was on the short list for every board and commission appointment? After all, boards and commissions like the board of education, land use commission, PUC, water commission, paroling authority, etc., have weighty responsibilities.

    Dave, you oppose a selection panel for the BOE so don’t be surprised if the governor nominates whoever he likes without indicating what criteria was used, who was passed over, etc.

  8. David Shapiro Says:

    Charles, the governor can appoint whomever he wishes to those other jobs and is 100 percent responsible, so all we need to know to hold him accountable is the person appointed. In the case of judges, UH regents and legislative vacancies, he is required by law to appoint from a short list provided by another body, so those bodies share the accountability and we need to see the output of their work (the lists of recommended candidates) to judge if are properly fulfilling their responsibilities.

  9. el guapo Says:

    Funny that when I read journalists write that “the public has a right to know”, what I hear is “I want it handed to me so I can more easily write a story and criticize the decision”.

    What happened to reporters finding out the old-fashioned way – finding sources willing to speak off-the-record and then throw your stones?

    What about the Judicial Selection Committee? Do we have to know all the applicants so you can throw stones at their determination of the short list too?

    What about the media? The media is supposed to serve the public. Shouldn’t we be told who was on the short list to be the new editor, or columnist, or news anchor so we can criticize the decision too? Or do we just accept the media’s decision because they control the news anyway? I have my own news – with the internet, you don’t have a monopoly on the news anymore.

    Face it, the public may want to know, but they don’t have a right to know everything. If they did then the Governor would be required to make the short list public. Or, more likely, someone else will spill the beans on the internet and scoop you.

  10. charles Says:

    David, I will assume then your position is that the governor has no responsibility to divulge other candidates or criteria used when selecting nominees for every board and commission in the state with the exception of those with some sort of screening process.

    Interesting.

  11. Kolea Says:

    Dave,

    I was well aware that i had earlier been supporting your call for more transparency from the Abercrombie administration. But I found Judge Hifo’s argument persuasive, both in terms of the potential jeopardy an applicant faces from their law firm and, the secondary effect you seem to downplay of fewer potential judges willing to apply.

    I think that is a real damage to the public interest.

    I do not think I am contradicting myself regarding the filling of legislative vacancies. While I support transparency in general, Judge Hifo’s point about the harmful effect this transparency would have on judicial appointments is much less likely with legislative appointments.

    I think you are rathe quick to accuse me of having a different standard for Republicans than for Democrats. If you review my comments on the blogs and discussion boards, I think you will see I frequently disagree with my fellow Democrats in these fora. Possibly more often than any of the other regular commenters whose partisan alignment you can identify.

    I have been pretty strong with my disagreement with the Governor over the plan to tax pensions, for instance. I definitely would have criticized Lingle or Aiona for such a scheme and so am not holding back from criticizing Neil.

    But in the case of the judicial appointments, Judge Hifo’s argument has led me to believe, on balance, the secrecy may be justified.

    Since you and I continue to agree about the need for transparency in filling legislative vacancies, I suggest you might want to start watching the process for filling Mina Morita’s House seat. Hopefully, the Kauai papers will keep the residents of her district well-informed on how the nominations will be decided upon and any interested Democrat in the district will have a fair opportunity to be heard. I still agree with you that the Hawaii County Party set a good example. Hopefully, the Kauai Party will follow the Big Island’s approach and the process will be more transparent than the Oahu nominations.

  12. David Shapiro Says:

    Perhaps a compromise would be to resume the way Ben Cayetano did it. He didn’t release the lists of candidates at the time he received them to allow for public comment, but he did release the names after he made his appointments, which at least allowed the public to evaluate the quality and diversity of candidates put forth by the JDC and the reasonableness of the governor’s pick from the choices available to him. From the lawyers’ standpoint, the names didn’t come out until after it was a settled issue and no longer still an open question as to whether they’d be bailing on their firms and clients.

    Not ideal, but I’d shut up.

  13. Mike Middlesworth Says:

    I think you’re wrong on this one, Dave. Think back to your days at the Bulletin. Neither you nor I would have been vindictive had we known one of our staff had applied for another job, but there were others on both sides of the hall who would have seen that as serious disloyalty and reacted accordingly. Much as I advocate for openness in government, I think this is a case where we won’t get the best judges if we put people at risk. As for electing judges, that’s the worst possible way to do it. Take a look at the situation in Texas, where seats on the Supreme Court go to the big spenders.

  14. el guapo Says:

    Shapiro, what’s more important, the choice or the outcome? If the outcome turns out to be a fair, knowledgeable jurist, isn’t that good? If the outcome turns out badly and the Gov doesn’t want disclose the short list, then he alone is to blame. Isn’t that accountability?

    Making the short list public is trying to pass off some of the responsibility of the decision. IMHO, Lingle always made the short list known not to be open, but to point the finger at someone else (“well I didn’t have a choice, I had to select from the list they gave me”).

  15. David Shapiro Says:

    From the OIP in today’s S-A: Governor must reveal candidate list

  16. kalaheo Says:

    el guapo said: “What happened to reporters finding out the old-fashioned way – finding sources willing to speak off-the-record and then throw your stones?”

    Mostly sunshine laws and the Freedom of Information act. Citizens like me don’t like such important decisions made in secret.

    If a judicial candidate is too gutless to apply in public, I assume he is too gutless to make other hard decisions with significant consequences.

  17. Michael Says:

    There is such a thing as Lawyer/Client confidentiality. If facts were given to the Media and public, case would result in a mistrial as in some cases has.

    I feel the Governor has his Privelage to make a decision in secret. Governor Abercrombie, I see doing is making a decision he alone in office can make and not let the public decide like lingle did with HB444. He makes the decision and when decided lets the public know. With the soul decision he makes the blame stays his. (repeat)

  18. el guapo Says:

    In 1984 the lava flow from the Mauna Loa eruption came much closer to Hilo than was depicted. The contour maps sketch in the Hawaii Tribune Herald was distorted to make it appear that the flow was farther away than it really was when I compare the sketch to contour maps in the Atlas of Hawaii.

    Would it have done the public good to know this information? Questionable, some people could have started packing, some would not care, others would panic. This would not have been a matter of sunshine laws and Freedom of Information as far as I can tell, and the media had to have been in on the cover-up. At the time IMHO this was a case of the public not needing to know the facts. As I said before, the public would like to know but do not have the right to know everything. True democracy is not very efficient.

    Anyway, OIP has spoken and this particular issue is a moot point. Next!

  19. Kolea Says:

    The opinion the names must be released after the nomination is announced may be the best balance possible. It gives people a chance to judge whether the choice was, in their opinion, justified. A governor knowing the list will be released afterwards may feel a bit of pressure he/she might not fell if the list remains secret.

    I also think it is less damaging to a potential judge’s relationship with their law firm for the firm to learn an attorney had “considered” becoming a judge but was not picked. Compare that to the stress to the relationship of knowing one of your top attorneys is hoping to leave and going through the waiting period before the appointment is announced. Perhaps my psychology is unusual, but I think the prior knowledge would be much more stressful upon the relationship and a greater deterrent to prospective applicants.

    I’d like to second Mike Middleworth’s comment about elected judges. The judicial election process has become even more distorted after the Citizens United SCOTUS ruling. The ruling has not only unleashed corporate money for elections for political office, but also for judicial elections. If you have concerns about the “independence” of judges under our appointment process, compare that with judges who have to turn to wealthy financial interests for campaign funds, as well as to adopt “bumpersticker” slogans to appeal for votes.

    Let’s continue to work on improving the judicial appointment process and avoid the temptation of throwing up our hands in favor of the false “solution” of judicial elections.

  20. David Shapiro Says:

    FWIW, I asked a senior partner in a law firm about this last week and he said attorneys often discuss it with their firms before applying to be judges — and go to the Judicial Selection Commission with the full backing of the firm. It isn’t exactly a liability to have a former partner on the Supreme Court, and applying for the Judiciary isn’t seen as “disloyalty” in the same sense as jumping to a rival firm.

  21. Michael Says:

    Side bar.

    I have no problems with lava. Just wait till it cools and paint yellow lines on it and make it into a parking lot.
    OIP mistook 2 inches on a map for 2 inches when it is actually 2 miles in reality. More like smoot.


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