Here we go again. Time for another rather distasteful attempt by legislative leaders to undermine the independence of the courts. We’ve been around this block several times in recent years as legislators fume about and attempt to retaliate against court decisions.

One of this year’s bills, HB1311, is up for a hearing Tuesday afternoon at 4 p.m. before the House Judiciary Committee, chaired by Rep. Chris Lee.

One major provision of HB1311 would scrap Hawaii’s current system for reviewing judges and justices when they seek renewals at the expiration of their current term. The current system puts the power of renewal in the hands of the independent Judicial Selection Commission, which has been nationally praised as a model for keeping politics out of the process of selecting and renewing judges. The bill would make the commission advisory to the Senate, empowering the Senate “to consent to or reject” the decision of the Judicial Selection Commission.

The bill was introduced by House Speaker Scott Saiki, who was joined by all the top House leadership team, Vice-Speaker Mark Nakashima, Majority Leader Della Au Belatti, Majority Leader Dee Morikawa, and Judiciary Committee Chairman Chris Lee.

Saiki introduced a similar bill during the 2017 session. His HB1 (2017) proposed similar changes to the process for judicial retention.

This is just the latest in a string of bills introduced in the past several years that have been widely seen as attacking the judiciary by threatening to undermine the independence of the courts via politicizing the appointment or retention process or, in other cases, punishing judges financially by proposing changes in their retirement plans.

This bill appears to be a replay of the 2017 legislative session, where a similar bill to insert the senate into the reappointment process was the very first bill filed in the House for that session.

And Saiki’s HB1 was simply a repeat of a similar bill that was Senate Judiciary Committee the year before, in 2016.

(SB2420) was “widely seen by observers as a political message being sent to the Judiciary, and likely at the Supreme Court in particular, accompanied by the threatened loss of judicial independence.”

In that 2016 post, I went on to describe the political landscape at the time.

And one interesting thing to note is that no one in the Senate is taking responsibility for the implicit message. No one has stepped forward to say what decisions of the court have drawn the wrath of the Senate, or at least the Senate leadership, which presumably has backed the bills. No one has identified problems in the current reappointment process that might have prompted the bills. Instead, we’re apparently back to back room discussions in which unknown senators use the judicial selection process as a bargaining chip in furtherance of their unstated political goals.

From Standing Committee Report No. 2725 on SB2420 described the testimony it received on the bill.

Your Committee received testimony in support of this measure from one individual. Your Committee received testimony in opposition to this measure from the Judiciary; Office of the Public Defender; Hawaii State Bar Association; West Hawaii Bar Association; Kauai Bar Association; Hawai‘i County Bar Association; Hawai‘i Women Lawyers; American Judicature Society; Hawaii Government Employees Association, AFSCME Local 152, AFL-CIO; William S. Richardson School of Law Student Bar Association; and twenty-eight individuals.

Despite the overwhelming opposition, the bill was approved by the Senate Judiciary Committee. However, it was ultimately pulled before a final floor vote and sent back to the committee, effectively killing it.

It appears that nothing much has changed over the past few years, including the desire of legislative leadership to slap down the Judiciary because of decisions, actually or potential, that are seen as challenging the Legislature’s absolute political freedom.

In 2016 and 2017, leaders at the capitol were angry over decisions in a case that raised the question of whether the Legislature had violated the State Constitution by failing to provide sufficient funding to the Department of Hawaiian Home Lands. See “Legislature’s attacks on judges tied to past failure to fund Hawaiian Homes,” ilind.net, April 26, 2017, and “Hawaii Lawmakers Needlessly Renew Assault On The Judiciary,” Civil Beat, January 26, 2017.

This time around, it’s likely legislators are trying to send a warning to the courts to keep their hands off the controversial procedural maneuver known as “gut and replace.”

This is when a legislative committee takes a bill that is alive, and has at least a distantly related title, and totally replaces it’s contents with another measure that would otherwise be dead.

The League of Women Voters of Honolulu and Common Cause Hawaii filed a lawsuit challenging “gut and replace” last year. Although not named as a defendant in the case, the Legislature took it very seriously, hiring former congresswoman Colleen Hanabusa to file argue against the nonprofit groups’ challenge. The case was dismissed last month, but an appeal is almost certain, and the case will likely eventually reach the State Supreme Court.

And rather than trusting that they are holding a winning legal hand, it looks like legislators are again trying to send a stern message to the Judiciary–don’t mess with us or our powers, or we can make life miserable for you.

They appear to believe that might is right, in law as well as in other spheres of life. But the public relies on an independent Judiciary to protect our rights against those who would abuse their powers. The dogged pursuit of anti-Judiciary legislation over several years and different legislative sessions displays an ugly side of those who might otherwise be seen as politically astute and somewhat progressive leaders.

By the way, both Saiki and Belatti are practicing attorneys. According to financial disclosure forms filed with the State Ethics Commission, both earn between $50,000 and $100,000 annually from their legal work.

Testimony on HB1311, positive or negative, can easily be submitted online. See the hearing notice for more information.