It now seems to me that Gov. Abercrmobie’s decision to keep the names of nominees secret isn’t the real issue, although it’s disturbing that he has veered from the path of transparency so early in his administration. The problem is with the fundamental secrecy of Hawaii’s entire judicial selection process, which is now far more closed than most other states. Although it started as a reform to the raw politics of an earlier era in the judiciary, the process in Hawaii, unlike most other states, has failed to adapt to the growing public appetite for openness, transparency, and participation.

A judicial nominating commission similar to Hawaii’s is used in 33 states and the District of Columbia to screen judicial applications for some or all of their courts, according to the American Judicature Society. Of those, at least 23 states and the District of Columbia publicly disclose the names of nominees, although in some states the practice differs by area or court.

But there are far more startling differences than simply the public disclosure of nominees. Many states are far more open than ours, not only in terms of public information but also public participation.

• Alaska: Names of judicial applicants are disclosed in a press release inviting public comment. Another press release lists nominees whose names are submitted to the governor. Applicants can opt to have interviews open to the public.

• Arizona: According to the State Bar of Arizona, the judicial nominating commission interviews applicants and votes in public meetings. Meetings may be held in executive session by a 2/3 vote.

• Florida: Commission rules spell out an open process.

All applications, and other written information received from or concerning applicants, and all interviews and proceedings of the Commission, except for deliberations by the Commission, shall be open to the public to the extent required by law.

In addition, the commission publicly announces the list of nominees forwarded to the governor.

• Iowa: This month, for the first time, the Iowa Judicial Nominating Commission opened its interviews of candidates for the state Supreme Court to the public and the press, even streaming them live on the Internet. In addition, resumes of applicants are also available online for public inspection.

• Kansas: In December 2010, the commission that interviews candidates for the Kansas Supreme Court and the Kansas Court of Appeals announced that its its hearings, including interviews with judicial applicants, will be open to the public.

Commission Chair Anne E. Burke, Overland Park, said the move to open the interviews is designed to instill further confidence in the manner in which the appellate court judges and justices are nominated. “We believe the move toward open interviews will demonstrate the careful thought and consideration given by the Commission to those whose names are forwarded to the governor for appointment,” Burke said. “Kansans now can see for themselves how well the nonpartisan merit selection process works.”

“The decision to open the interviews recognizes that a more transparent process of appellate judicial selection is important. This change will allow the public to hear the questions asked by the Commission and the candidates’ answers,” she said.

• Montana: All meetings, proceedings of the commission, and documents shall be open to the public except when a majority of the commission votes that the demand of individual privacy exceeds the merits of public disclosure. [Source: American Judicature Society]

Names of applicants are disclosed and applications are public (see example).

• Nevada: In Decmeber 2007, the Nevada Commission on Judicial Selection voted to open the interview process and its own deliberations to the public. From the commission’s statement at the time:

The seven-member Commission agreed that with few exceptions the entire process, which traditionally had been confidential, could become public. Those exceptions would involve such information as personal identifiers and health details.

Also remaining confidential will be the letters of comment solicited by the Commission about the candidates and letters of reference. The Commission wants to ensure the authors of the letters can be candid.

“The Commission believes in the quality of the process and firmly believes the public should see it,” said Chief Justice William Maupin. “One of the most important functions of government involves the selection of judges.”

There are more examples, but these are sufficient to make the point. While it’s necessary to balance the public’s interest in openness with the privacy interests of applicants, the degree of secrecy built into Hawaii’s selection process puts us well out of the mainstream.

It should also be recognized that in many parts of the country, the judicial system is under attack by conservative groups seeking to undermine judicial independence. The shift to more transparent selection procedures seems to be a response to those attacks, as state judiciaries attempt to reassure the public that hard questions are asked and answered in a merit-based selection process.

My brief commentary broadcast today on Hawaii Public Radio deals with this issue. It concludes: “Governor Abercrombie’s retreat into secrecy is regrettable, but it’s an overdue reminder that a broader overhaul of the way we select judges may be in order.”