In this press release issued yesterday, the Hawaii Judicial Selection Commission announced it has amended its rules so that from now on, the JSC "will release the names of the nominees transmitted to the Governor or Chief Justice at the time they are transmitted and will be permitted to disclose statistical and historical information that summarizes patterns and trends in judicial selection." More from the Star-Advertiser here.
In other words, the lists (of not less than four, and not more than six) names of nominees whom the JSC deem "qualified" to fill vacancies on the Circuit Court, Intermediate Court of Appeals, and the Hawaii Supreme Court, will now be made public at the same time the list is given to the Governor.
This is a new direction, because until this change, the JSC Rules have always barred the Commission from disclosing even the names of nominees: "[s]ince the [JSC] rules were first adopted in 1979, they have prohibited the JSC from disclosing its main work product – the names of the nominees on the lists presented to the Governor and Chief Justice as appointing authorities." Although the JSC has never released these names, for the past sixteen years, Governor Cayetano and Governor Lingle routinely released the lists after receipt from the JSC: Cayetano released the names once he announced his appointment (but before Senate consent), while Lingle released the lists immediately upon her receipt from the JSC, and before she picked her appointee.
Governor Abercrombie, however, broke with this tradition and refused to release the lists, even after the Senate consented to his appointments. He claimed that disclosure of the names of judicial nominees would "frustrate" the process of choosing judges, because lawyers would be reluctant to apply to the JSC if they knew their names might eventually be revealed. In August, the Honolulu Star-Advertiser brought a lawsuit under the state's public records law to compel the Governor to disclose the lists. [Disclosure: we represent the Star-Advertiser in that case.].
Earlier this week, the circuit court granted the Star-Advertiser summary judgment, and ruled that Governor Abercrombie must disclose JSC lists. Details here. The Governor has not announced whether he intends to appeal that ruling.
By amending its rules to allow the public to know the names of the nominees at the same time a governor does, the JSC is acknowledging there are no good reasons to keep these lists secret once the Commission has concluded its deliberations, and that there are excellent public policy and empirical reasons for the public to have access to this information at the same time a governor does. Contrary to Governor Abercrombie's arguments about disclosure "frustrating" the process, it seems the JSC has concluded that disclosure makes the process better, a total vindication of the Star-Advertiser's arguments.
JSC Press Release 11-16-2011, and Amended Rules
