Hawaii’s novel way of selecting judges


Credit: Hawai’i State Judiciary

In our idealized view of the American legal system, judges are supposed to be dispassionate arbiters of the law who are freed to focus solely on the legal issues at hand rather than irrelevant political, personal, and special interest pressures. In reality, judges are human beings — and human beings are not oblivious to criticism and threats to their jobs, professional legacy, and public reputation. That’s precisely why federal judges stay on the bench for life, despite the various downsides of lifetime tenure: to insulate them from the risk of losing their jobs and political backlash provoked by unpopular but legally correct decisions.

The judicial system in place in the states, however, is a different story. In most states, judges already in office must stand for re-election by voters or re-appointment by a popularly-elected governor or legislature. As a result, the way states expel or hold onto to their judges may be undermining the impartiality, quality, and integrity of the justice delivered to citizens in the courtroom.

Hawaii is a notable exception. As the Brennan Center for Justice explains, that state uses a judicial retention system that other states should study and perhaps even replicate:

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 Hawaiian model has its flaws, but it’s definitely worth a closer look at the least. For more information, see “Judicial Retention in Hawaii: A Case Study,” Brennan Center for Justice (2016).