Hawaii’s World

By A.A. Smyser

Tuesday, January 19, 1999

Political influence
in selecting judges

HIGH on the agenda of this year's Legislature should be a pay raise for judges. It could be 25 percent or more, considering they have been without a raise for eight years.
We want judges who are capable, fair and independent. Pay doesn't assure this but it can help by making service more attractive.

Already our judges have fringe benefits even better than the generous ones for most government employees.

Their lifetime retirement pension is fatter, can start when they are still in their 40s and carries with it fully paid lifetime health insurance for them and their families plus substantial death benefits. Government pensions increase automatically each year by 2 percent of their original base.

Pension generosity for even young judges has been key to a standoff over judicial pay raises with the Legislature and the governor.

We delude ourselves if we think the judiciary is above politics. At the federal level we had President Reagan's litmus tests for potential nominees on right-to-life issues.

The Senate Supreme Court confirmation battles on Robert Bork (rejected) and Clarence Thomas (narrowly confirmed) were founded in opposition to their conservative views. The Anita Hill smoke screen against Thomas never would have been raised had he been a liberal.

Yet the federal system has been pretty satisfactory overall. Lifetime appointments help encourage the independence we want. Congressional impeachments of sitting federal judges have been few, Senate convictions even fewer. The simple credible threat of impeachment has caused some federal judges to resign, as did President Richard Nixon.

Hawaii has been well served under the custom of allowing senior senators, first Republican Hiram Fong and now Democrat Daniel Inouye, to make recommendations on nominations to the president that usually have been accepted and confirmed. We have had a strong federal bench.

Ten years is the maximum appointment for our state judges but they can be reappointed without further review by the governor or Senate by our Judicial Selection Commission. It decides privately on the basis of their records. The commission figures in first-time selection by screening applicants and sending lists to the governor or chief justice. The Senate must confirm.

This process was conceived to limit politics. It clearly was subverted in recent choices of trustees of the rich Kamehameha Schools/ Bishop Estate.

Our Supreme Court justices awarded trusteeships to those who figured in their appointment process. They chose a former House speaker and former Senate president, who named members to the Judicial Selection Commission.

They also wanted to appoint the governor who nominated them but were stopped by public outcry. They chose a former head of the Selection Commission instead -- very, very cozy.

Our Supreme Court justices at last have taken themselves out of the appointment process and will ask substitute judges to hear future cases involving the estate.

SOME of this has led to a call to elect our judges. It would be a mistake. It could lead to judicial showboating and even more partisanship.
The Judicial Selection Commission has proved that it can be about as political as the former process of direct nomination by the governor, but no alternative would be clearly superior and its power to renew terms is a real plus.

Let's stick with the system we have, keep critical eyes on it, give our judges decent pay and give greater public airing to the pros and cons of their retirement plan.

A.A. Smyser is the contributing editor
and former editor of the the Star-Bulletin
His column runs Tuesday and Thursday.

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