Hawaii: one change to merit/commission selection system passed Senate unanimously, other proposed changes stalled

Efforts to make major changes to Hawaii’s merit/commission selection system for judges appear to be stalling, while a technical amendment regarding the timing cleared the state’s Senate unanimously.

SB 2498: when does the nomination and default confirmation clock(s) start?

Hawaii’s judicial selection system is very time-focused. Under the state constitution the state’s Judicial Selection Commission sends a list to the governor (higher courts) or chief justice (district court) to select from. This starts a series of timed events.

  1. Upon presentation of the list, the governor or chief justice must make an appointment within 30 days. If they fail to do so, the judicial selection commission makes the pick.
  2. Upon selection by the governor, chief justice, or commission, the senate has 30 days to confirm. If the senate fails to reject any appointment within 30 days, “it shall be deemed to have given its consent to such appointment.”

In 2012 this became an issue when the governor announced at a press conference 5 days before the 30 day deadline his pick for the state’s supreme court but did not formally send the name to the senate until a week later, 2 days after the deadline. The state’s attorney general found that the 30 day window had been satisfied at the press conference.

SB 2498 would clarify the 30-day deadline for confirmation requires written notice to the senate, not just press conferences. Moreover, the deadline would start with the “senate’s receipt of written notice of the appointment.”

SB 2498 was approved 24-0 by the Senate yesterday (March 9) and now goes to the House.

SB 2239: end merit/commission select and replace with elections (initial term) and senate confirmation (additional terms)

SB 2239 would simply ends merit selection of judges and replace it with elections for their initial 6-year terms (a reduction from the current 10 years for higher courts). Rather than running again at the end of the term, the judge would be subject to confirmation by the senate for subsequent judicial terms. After broad based opposition to the plan a vote set for February in the Senate Judiciary and Labor Committee was deferred until March 2 and then deferred indefinitely.

SB 2420: senate must reconfirm judges at end of their term; default reconfirmation in 90 days

Unlike SB 2239 which would have ended the state’s merit/commission based selection system, SB 2420 keeps the system but alters how judges are retained in office. Currently at the end of a term a judge goes back before the Judicial Selection Commission who must reapprove the judge. There is no role for either the governor or the senate.

SB 2420 would require judges must be reapproved by commission and confirmed by senate. Moreover, it keeps the idea of default confirmation in place, but gives the senate 90 days (rather than 30 days) for default reconfirmation.

SB 2420 was approved by the Senate Judiciary and Labor Committee in February. However, a Senate floor amendment set the effective date for the constitutional amendment as January 7, 2059. Typically setting such dates indicates the legislature is delaying or stalling a bill for possible study or outright defeat.