State judicial selection among the best
By Robbie Alm
It has been said that "eternal vigilance is the price of freedom." The same can be said for judicial independence. And no one has been a more vigilant guardian of judicial independence than the American Judicature Society.
From the society's point of view, one key to an independent judiciary is the selection and retention of judges through a merit-based process.
ALM
In 2002, a group of Hawai'i attorneys, judges and residents were asked by Larry Okinaga and Chief Judge James Burns of the society's Hawai'i chapter to look at the state's judicial selection and retention process. Hawai'i is viewed as a national leader in this area, and the goal, with "eternal vigilance," was to remain one.
The review of selection and retention and of the Judicial Selection Commission yielded a number of key conclusions, the most important of which was that Hawai'i's system is working well, and is one in which we can take great pride.
Specifically, we found that the process is not politicized, and that its decisions result from an appropriate procedure. Any process can be improved, however, and the Special Committee on Judicial Selection and Retention made a number of specific recommendations.
We noted that the current process has two key paradoxes in terms of confidentiality. The first is that while the process is entirely confidential (as are most personnel matters in the public and private sectors), judges give up any due-process rights. It's private, and there is no appeal.
The other paradox is that the process is confidential to protect the identity of those who comment on a particular judge's conduct, which is clearly critical to getting the necessary input. That confidentiality, however, also makes it impossible for the commission to explain its results in any detail.
The Special Committee made recommendations in such areas as the ongoing judicial evaluation system, the ability of the public to participate, the amount of information transmitted to the person who appoints the judge, training provided to Judicial Selection Commissioners and the need for a public education program about the selection and retention process.
We made two recommendations that we knew would be controversial. First, we urged that a mechanism be created for complaints about the conduct of selection committee members. We believe oversight is important for any government agency.
We also urged that a judge who has served a term or terms on the bench be presumed competent — subject, of course, to the society receiving evidence to the contrary.
Again, the Special Committee's major conclusion was that Hawai'i's process of selecting and retaining judges is a very good one. From the judicature society's national point of view, it is, in fact, one of the best in the nation.
Robbie Alm is a senior vice-president of Hawaiian Electric Co. and a member of the American Judicature Society Committee on Judicial Selection/Retention.
