The Aloha State: A Model for Selecting Judges?
Across the country, the selection of state judges is increasingly politicized. Heightened special interest spending in judicial elections, threats of political retaliation for unpopular rulings, and increasing political pressure and partisanship threaten the fairness and integrity of state courts. But amid the tumult and with new calls to rethink how states choose their judges, our 50th state, Hawaii, utilizes a novel system of judicial selection. Hawaii’s selection model is designed to protect judges from outside influences by empowering a commission to determine whether sitting judges should be retained for additional terms. It’s a model worth studying more closely, a task we have begun with the release of Judicial Retention in Hawaii: A Case Study.
Political and special interest pressures on the judiciary are particularly troubling when a judge’s job security is at stake. If a judge fears that deciding a case a certain way might alienate whoever is responsible for her reselection — whether it is the governor, the legislature, or the electorate — she could be tempted to depart from a decision that’s based solely on her independent understanding of the law. A growing body of empirical evidence suggests concerns about reselection pressures are well founded, and that worries over job security impact how judges rule in cases. When reselection fears guide a judge’s decision-making, the promise of fair and evenhanded justice is endangered.
Federal courts avoid many of these concerns by offering judges life tenure. But nearly every state has chosen a different path, requiring sitting judges that wish to remain on the bench to either stand for election or be reappointed by the governor or legislature. Hawaii also rejects life tenure for judges, but it follows a unique model for doing so: in an effort to insulate sitting judges from reselection pressures, Hawaii delegates the retention decision to an appointed nonpartisan Judicial Selection Commission.
When a judge approaches the end of her term, she may petition the nine-member commission to remain on the bench. The commission assesses the sitting judge’s fitness for retention based on a wide range of evaluative materials, and votes on whether or not the judge should be granted an additional term. By diffusing reselection power among the members of a deliberative, nonpartisan body, instead of leaving it with voters or the political branches of government, Hawaii promotes a system in which judges are evaluated on their entire record, and not punished for a politically unpopular decision.
The design of Hawaii’s commission also helps enhance its role as a nonpartisan evaluator. Hawaii spreads out the power to appoint commission members among the governor, the chief justice of the state supreme court, the leaders of each legislative house, and the Hawaii State Bar Association, thus encouraging a balanced commission that may be more resistant to political or interest group capture. While 36 states and D.C. use nominating commissions to vet judicial candidates, only nine distribute appointment power to three or more authorities. “Spreading [decision-making] power among a number of people,” writes one former state judge, “makes cooperation, consideration, and compromise among commissioners more likely, thus strengthening the system.”
Commissioner terms matter too. In Hawaii, commissioners’ single, staggered, six-year terms allow commission membership to turn over gradually, reducing the likelihood of radical swings in commission culture while encouraging the consistent application of standards for judicial evaluation over time. Furthermore, because commissioners’ terms are shorter than judges’ terms, commissioners are never put in the awkward position of having to assess a judge they previously supported or opposed.
The Hawaii commission also solicits a wide range of evaluative information and perspectives. Interviews with court personnel can reveal problems that may not show up in a judicial performance evaluation. Comments submitted confidentially by members of the public can flag issues that may not be clear from a review of judicial opinions. Considering a breadth of information enables the commission to more accurately spot and assess judicial misconduct.
To be sure, Hawaii’s system is not perfect. While it is generally popular and appears to work better than many other “reselection” systems in protecting judicial independence, it does not offer the public much insight into its processes, or the ability to assess whether the commission is following its own rules. It’s unclear, for example, how much weight public comments hold, or indeed whether they’re even considered. The shortcomings can fuel a sense of exclusion that hurts the public’s confidence in its judges and may mask problems with how the commission operates in practice. Small changes, such as sharing the commission’s evaluation procedures and publishing more of the materials used to evaluate each judge, could boost public trust in the judiciary while furthering judges’ decisional independence.
Despite these shortcomings, Hawaii’s system provides an alternative model for states looking to enhance judicial independence without adopting life tenure for judges. States worried about the threats posed by elections and other reselection pressures could do worse than to look west.