I breakfasted with Gov. John A. Burns in the 1970s when the debate was going on about curtailing his wide power to nominate judges. The changed system, which carried the day in the 1978 Constitutional Convention, limits our governors to nominating from lists cleared and sent to them by a nine-member Judicial Selection Commission. Senate confirmation remains the final hurdle. Changes in state
judicial selection systemBurns grumbled that trying to get politics out of the system was unreal. Any system will soon feel the hand of politics, he said. It reminded me of a journalism adviser who told me in high school that wherever there are people there is news. He was right.
Burns was right, too. Wherever there are people there is politics. System changes merely redistribute the political pressure points. Otherwise how to explain the decision of our "new system" Supreme Court justices to give the last four Kamehameha Schools/Bishop Estate trusteeships to politically well-connected persons?
The national furors that kept Robert Bork off the U.S. Supreme Court and almost kept Clarence Thomas off wouldn't have happened if they had been liberals. Their alleged sins might not have been noticed at all.
Thomas will go down as a good justice, in part because he doesn't buy all the policy lines of the National Association for the Advancement of Colored People, some of which he correctly considers racially divisive.
Our Hawaii system change shifted politics to the Judicial Selection Commission. It controls who is recommended to the governor. It has final power over the reappointment of sitting judges.
Now there is in-fighting over who gets on the commission and how it works. Partly to head off any push for elected judges, widely considered too political, a citizens conference was convened in 1993 to recommend fixes that improve our appointive process.
Some key changes were embraced in four constitutional amendments ratified in 1994 but then held up from going into effect because Governor Waihee claimed a faulty notification process. Waihee filed a court challenge that Governor Cayetano kept going.It took until this January for the Supreme Court to declare the amendments OK.
Between them the governor and chief justice henceforth will no longer appoint a majority of selection commissioners.
The lists from which they must choose will be shortened in an effort to keep off those considered only marginally qualified.
The chief justice's nomination of district judges, also from a selection commission list, will be subject to Senate confirmation. On all nominations Senate public hearings will be mandatory.
IN the new system the governor will appoint only two selection commissioners instead of three, the chief justice only one instead of two. The Senate president and House speaker will each appoint two instead of one. The Hawaii Bar Association will continue to elect two.
The governor and chief justice early on agreed to disclose what names were sent to them. The selection commission has strengthened its conflict of interest rules. It still won't release names of applicants but will issue statistical data on them. It still will have final authority over reappointments, which the 1993 citizens' conference felt had been effective.
The word "politics" has both positive and negative connotations. The new system is intended to give us more of the good stuff (merit selections) and less of the bad stuff (cronyism). The process overall has been made much more open to view, with power more diffused. But don't forget what Governor Burns said.