Wednesday, September 14, 2011


Abercrombie’s defense of judicial selection list secrecy itself frustrates a government purpose

by Larry Geller

Ian Lind refers in an article this morning to the somewhat lame defense filed by the Attorney General on behalf of Governor Abercrombie in the Star-Advertiser’s challenge to the administration’s withholding of the list of names of judicial nominees. While I’m certainly not qualified to evaluate the document from a legal standpoint, I do agree.

I note that one leg of the defense is that the deliberations of the Judicial Selection Committee are to remain confidential, according to to the Constitution.

Ok, let’s say a kid makes a mess in the living room. The parents send kid to the bedroom and they deliberate. Having deliberated, they call kid down to hear their decision. They ground the kid for two days.

The deliberations might be confidential, but the result is separate from the deliberations. Isn’t it the same for the Judicial Selection Committee? They get to hunker down in secret, then they pass their note to the Gov.

I have no idea if a judge would make a similar analysis.

Another leg the defense stands upon is the frustration of a government purpose. Well, Cayetano and Lingle both released their lists, and yet Abercrombie was able to make his selection. So what was frustrated? A judge was appointed. No problem.

What is frustrated by secrecy is the expressed government purpose of openness and transparency in its affairs.

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In keeping with the checks and balances a list is circulated and the names are published so that anyone may raise concerns about a nominee or recommend. Thatʻs how itʻs done.
He seems to be doing a lot of dictating lately. This guy needs to do a little Law 101, at the very least.

Anybody talking impeachment yet?

There's nothing impeachable here. The executive branch has asserted its discretion, and because others differ, a court will decide. Should the court decide that the list will be released, it will almost certainly be released.

The court could find that the list does not have to be released.

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