I received a note from a reader yesterday wondering if I was planning to respond to the op-ed by attorney Dan Case that appeared in the Star-Advertiser over the weekend (“Gov. Abercrombie right not to publicize names of judicial nominees“).
To tell the truth, I hadn’t seen it on Sunday, since I left home very early to deliver Duke to the vet.
I certainly appreciate the description Case provides of the reasoning of the 1978 Con-Con, which crafted a much fairer process than the one it replaced.
Mr. Case argues one primary point. He believes top attorneys in private practice are unlikely to apply for judgeships, or agree to be considered, if the names of unsuccessful candidates are made public.
But there is, at best, disagreement on this point. Perhaps most importantly, it’s a viewpoint that has been rejected by the Hawaii Supreme Court, at least in the case of the “short list” of nominees put forward by the commission (see Pray v. Judicial Selection Commission), an argument discussed here earlier.
Even if fear of public disclosure could be a factor in why few top lawyers in private practice apply for judicial positions, there are certainly other major factors. Choosing to be a judge is the choice of a different career path than being a practicing attorney, and I would guess that it would not be an attractive choice for many attorneys. Judicial salaries are certainly far lower than what a top attorney can earn in private practice. Courts face heavy workloads. And then there’s the mandatory retirement age of 70, an arbitrary career cut-off not faced in private practice.
Finally, Case does not address the significant opening of the selection process in many mainland jurisdictions, a clear indication that public views are changing towards the older tradition of a closed, cloistered bar.
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The ultimate “outing” of attorneys interested in serving as judges is when they have to actually run for the office. At present, 39 states elect their judges at varying levels.
It would be interesting to know if this has had a chilling effect on attorneys contemplating serving on the bench and, if so, if there’s been a growing movment to go with an appointment process.
I haven’t heard of it.
While I thank Dan Case for his efforts to bring the Judicial Selection Commission into existence, a huge improvement from the process used before that, I don’t share his enthusiasm for its conception, vetting, and endorsement by the Hawaii State Bar Association. At that time, the HSBA was a private entity oriented toward serving members drawn from Bishop Street law firms long on haole male pedigree, corporate clients, and Pacific Club memberships. It’s no surprise that the HSBA would want the JSC’s actions to be shrouded in secrecy, even if the goal was to promote selection based on merit.
It was not until the mid 80’s that then Supreme Court Associate Justice Frank Padgett forced “integration” of the Bar, essentially requiring all attorneys to become members of the HSBA and requiring the HSBA to take over funding of the admissions and disciplinary process. It has taken the better part of 25 years to get the organization to a point where it fairly represents its diverse membership, of which the former HSBA coterie is now a minority, albeit significant and influential part.
We have now had a government attorney lead the HSBA and quite a few attorneys from the public and smaller private practice sector appointed to the bench. Is that partly because private practice, especially big firm attorneys, are afraid that release of their name in connection with the judicial selection process will alienate partners and clients? Probably.
But, on balance, I’d rather have transparency and an over-representation of attorneys not from the Bishop Street tradition than a closed process that will prevent us from finding out what cross-section of the Bar is applying and if the Governor is choosing based on merit.
I agree with OhiaForest’s impressions, but switch to the other side of the balance. Private practice is a much tougher game than it used to be. In the old days, partners rose up on escalators, and had little to worry about. Now, they can be let go at the drop of a hat and have lots to worry about. Judging is a very attractive route, but I think it is a fair assessment that many folk won’t put their names forward if it means putting their stable jobs on the line.
After all, stability in income is a major attraction to law — if someone was willing to take bigger risks/return, they’d have gotten an MBA.
And so then we all lose for not getting folk who the public should/would want to be judging over our lives.
As to whether private practice is more attractive than judging, (responding now to Ian’s point about lower salaries), judging is very attractive for many when put up against a litigation practice. (Transactional lawyers are in an entirely different game.) Why? Reasonable life style, greater job security, community respect, and most importantly, getting a hold back on finding “meaning” in one’s work.
Consider what must be in the historical pile of dreams written in idealistic law school applications, usually sincere, against the reality of working in civil litigation on either side. Judging opens a door to get back some of the sense of humanity that brought many to the legal profession in the first place.
So yes, I think judging is very attractive over litigation practice for many attorneys. And on balance, I’d rather have a diverse judges and talented cadre of judges.
(Correct to guess that I’m writing this from within the profession. But ‘nuf said about me.)
I always thought the barrier to having highly qualified attorneys apply for judgeships was the pay. Maybe the pay issue only is a problem in the Philippines
The view espoused by Dan Case was facialized by someone most familiar with courts, both of the judicial and hardwood varieties.
Said Kobe Bryant of the adverse impact on Andrew Bynum from having his name outed as the center piece of a proposed monster trade for Carmelo Anthony:
If Andrew can’t take being outed, he ain’t Game 7 material and we don’t want him.
What kind of judicial courage do you think would be forthcoming from an attorney who can’t stand up to his partners and clients for throwing his hat in the ring?
And, who is Dan Case fooling when he says partners and clients don’t know the attorney threw his hat in the ring;
if the attorney applicant is from a high powered firm, his high powered partners and clients are likely to be out lobbying for the attorney applicant.
Witness the telephone calls made and petitions circulated in support of attorney applicants whenever a position in the bar or judiciary opens.
I agree 100% with touchthestick? We don’t want a judge who can’t stand up to his partners and clients and admit he applied. A judge (via his clerk) asks every witness appearing before him/her to solemnly swear they will tell the truth, the whole truth. A judge who can’t handle the whole truth should not be a judge.
Sometimes, it isn’t about standing up to your partners. It’s about balancing your career goals against the relationships you’ve developed over the course of what is likely to be a lenghty career.
When a partner leaves a firm amicably, everybody seems happy for her. The truth is, for the attorneys that remain at the firm, the relationship is never the same.
If you look at the landscape, some would argue that law firms in Honolulu are getting older. With a tight economy and partners that are pinching pennies to maximize profits, I feel that the next generation of the leaders in the legal community are fleeing to the security of public sector or in-house counsel jobs.
Why? I have a strong feeling that younger attorneys are making efforts to practice law that is rewarding. If this is the case, the judicial selection process will be cleansed by sunlight.
Lastly, judges don’t operate in a world of truths. They deal with facts that are presented before them. Their opinions about these facts are developed from the context provided by attorneys. Without this context, what is true is indistinguishable from what is false.