Someone recently passed along the results of an informal survey by Hawaii Women Lawyers.

The survey question: “If the governor were to publish the short list of candidates for a judicial position would you be less likely to apply?”

The question drew 55 responses. Of those responding, 58.2% said the disclosure would not influence them, while 41.8% said they would be less likely to apply.

Individual comments covered a wide range of opinions, from those favoring full disclosure to others worrying about retaliation by law firms.

I think the question falls short of the issues that some candidates have in certainlaw firms. So while the majority who apply may not be affected, should the concerns of the minority be discounted. What if the minority are those who are the best candidates for judicial office. What if the best woman candidate was a member of a firm who would retaliate against her if she applied and was not successful on the first try, as many are?

On the other hand:

I really think the Governor should publish the short list of candidates to improve Sep 25, 2011 7:44 PM and strengthen the public’s confidence in our judicial selection process.

A couple of things occur to me here.

First, the question of whether “the best lawyers” are likely to apply under various conditions is totally hypothetical and a red herring to boot.

We’ll never know whether “the best” lawyers apply or would apply, even in the unlikely event that we could agree on how to define that top tier of practicing lawyers. Do we mean the best litigators? The best negotiators? The best corporate advisors? Do we mean those who make the most money? Have the most clients? Have the best records in court? Best record staying out of court? “The Best” is simply an elusive idea that distracts from the bigger issues here.

And it’s a red herring because we need judges who are highly qualified and temperamentally suited to the judicial setting. We don’t need “the best” lawyers. We hope for the best available applicants, but also expect that other good, qualified judges will grow wiser as they gain experience.

And is there any evidence that the “best” lawyers make the best judges? I’ll bet the jury is out on that one.

Second, while concerns about the dynamics of particular law firms are certainly real, I don’t think they rise to the level of public policy concerns. They affect individual potential applicants, not the larger public interest.

The erosion of public faith and confidence in the courts caused by the continuing tradition of secrecy among the fraternity of lawyers is a much greater issue, in my view.

And let’s be clear. Even if disclosure carries the day and the courts rule that the names on the short list sent to the governor by the Judicial Selection Commission must be made public, Hawaii would still be far from the cutting edge of transparency.

Back in January, I did a quick Google search and found that many other states have been opening up their judicial selection processes to much broader public disclosure and participation, from putting applications online to holding screening interviews in public hearings. I won’t repeat all that information here, but will refer you back to that original entry if you wan’t more details.

Taking another quick look today, I was impressed by a column by the chairman of the New Mexico Judicial Selection Process published by the Albuquerque Journal, which catches some of the fine gradations of the issue.

While the Journal’s preference for transparency is understandable, reasonable minds can differ on this question. Transparency is important, but so is another important public value: robust deliberation in government decision-making. Unfortunately, in the judicial selection process, these two important values sometimes compete with one another.

Should the committees function more like a legislative body in which lobbying occurs in private but official meetings occur in public, or more like a jury, in which the evidence is produced in an open trial, but deliberations occur in private? Neither example fits perfectly in this context. Good people can come to different conclusions about which value should prevail in the judicial selection context.

The case for transparency in government decision-making is strong. Sunshine provides informal public accountability for decision-makers; it assists public understanding of decisions; and it reduces mistrust. Secrecy almost always undermines trust in governmental processes and allows conspiracy theories to flourish.
In an era in which trust in government is not high, transparency can improve public acceptance of decisions of governmental bodies. Indeed, greater transparency might demystify the process of judicial selection in New Mexico and reduce controversy about selections. Transparency may be especially useful for public bodies, like the committees, that are not required to explain their decisions.

Unfortunately, transparency can undermine frank and robust deliberation. Frank discussions among decision-makers tend to produce better decisions. Committee members may be reticent to speak up and actually deliberate if their discussions occur in front of the public or the media.

And so it goes on this gray and somewhat drizzly Thursday. If it’s bright and sunny across the mountains, I apologize in advance.

Just as I was ready to hit the “publish” button, the morning was interrupted by a cat fight in our front yard, which turned out to be Mr. Romeo attacking Ms. Harriet. Human intervention was necessary. I don’t know what was going on. Romeo is now back inside feeding his face, Ms. Harry on the deck licking her wounds. Hopefully none serious.