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The Honolulu Advertiser
Posted on: Wednesday, July 22, 2009

Stop tampering with state judicial selection

By David Shapiro

Chief Justice Ronald Moon and Senate President Colleen Hanabusa are at it again with their scheming to prevent Gov. Linda Lingle from making appointments to the state's highest judicial positions.

First they attempted to amend the state Constitution to abolish mandatory retirement for judges, which would have allowed Moon and Chief Judge James Burns of the Intermediate Court of Appeals to remain on the bench until after Lingle leaves office next year.

But voters recognized the obvious political manipulation and rejected the constitutional amendment, forcing Burns to retire last year and paving the way for Moon's departure when he turns 70 next September.

Then Hanabusa tap danced around the Constitution to stack the Judicial Selection Commission, which picks the nominees Lingle must choose from in appointing judges, by appointing retired Circuit Judge George Masaoka to the panel.

Masaoka is so close an associate of Moon's that one lawyer said it was like having the chief justice himself sitting on the selection commission.

There was a significant legal problem because Masaoka would have exceeded the number of lawyers the Constitution allows to serve on the panel, but he got around that by resigning from the bar.

It was a transparent violation of the spirit of the law by top officers of the court, but what's a little chicanery on something so important as making sure Lingle can only appoint judges from a list acceptable to Moon and Hanabusa.

Now they're using the budget crunch as an excuse to try to prevent Lingle from appointing any new judges at all, ostensibly to save money.

Moon and Hanabusa asked Masaoka and his colleagues on the Judicial Selection Commission not to send Lingle nominees for open judgeships, and Moon has suggested he might not swear in new judges although an appointee willing to buck the chief justice could go to a notary public.

As a last resort, Hanabusa could have the Senate refuse to confirm any of Lingle's judicial appointments under the guise of conserving funds.

Assurances by Democratic leader Hanabusa that she doesn't intend to deny Republican Lingle the "opportunity to make judicial selections" ring hollow in light of her persistent conniving on the matter.

There's a current opening for chief judge of the Intermediate Court of Appeals, and such dilatory tactics could save that appointment along with Moon's job for the next governor, which Hanabusa would love to be her.

It speaks poorly for the rule of law in our state when we have the chief justice of the Supreme Court and the president of the Senate, who is also a practicing attorney, conspiring to stop the Judicial Selection Commission from performing its constitutional duty for the political purpose of preventing a duly elected governor from fulfilling her constitutional duty to appoint judges.

Such corruption of the judicial selection process is becoming familiar territory for these two.

Moon led the court neck deep into the Bishop Estate scandal a decade ago that involved questionable selection of judges and trustees, and Hanabusa led the charge in the Senate to oust former Attorney General Margery Bronster in the middle of her investigation of the scandal which included looking at the role of Supreme Court justices.

Whatever you think of Lingle, voters elected her twice by wide margins with the expectation that she would exercise the powers of the office, and the constitutional process must be respected.

As an attorney who isn't active in local politics put it: "What we're effectively seeing here is an end run around the constitutional process. One of the governor's chief duties is to make long-term appointments to the bench. It's one of the most effective checks-and-balances we have, as it provides some measure of judicial independence from politics."