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Sen. Gil Keith-Agaran seeks passage of a bill which threatens judicial independence and undermines the appearance of judicial impartiality which is essential to sustaining the trust that the public places in the state judiciary.

proposes a constitutional amendment to require that Hawaii justices and judges be elected to serve six-year terms and repeals the judicial selection commission.

Hawaii should not relegate its judiciary to the same process by which we elect our lawmakers because our judiciary serves a very different purpose from our legislative and executive branches.

A person seeking elected office as a legislator, council member or executive is expected to be sensitive and responsive to the preferences of their supporters. The preferences of a politician’s supporters are most explicitly stated by contributing to a campaign in the context of particular issues important to the supporter. Recent United States Supreme Court decisions have essentially held that solicitation of political contributions are a form of speech, protected by the First Amendment.

When politicians make campaign promises, they are essentially stating that they have already analyzed particular issues and have formed conclusions and made value judgments, which will guide their legislative efforts. They are promising to abide by their expressed partiality, promoting an image of reliability on their issues of choice.

This is perfectly acceptable in non-judicial political campaigns because voters need to know what their elected officials stand for when they are elected to make law.

Judges should not be concerned that they will offend the sensibilities of supporters whose money and influence have created opportunities for their advancement.

However, the due process clause of the U.S. Constitution entitles a person to an impartial and disinterested tribunal in both civil and criminal cases. Judges are therefore different from politicians. Interpreting and applying the law to particular facts of matters litigated in our courts requires that judges have no pre-determined biases, so that they can fairly rule on the application of our laws in individual circumstances. We need judges to have nothing at stake in their judicial decisions.

Judges should not be concerned that they will offend the sensibilities of their supporters, whose money and influence have created opportunities for their advancement. Judges should not be concerned that their fair and unbiased decision could be so offensive to their supporters that such a decision could cause them to lose support and campaign funds and result in their needing to find a new livelihood.

If Hawaii changes its constitution to provide that its judges must be elected, the prospect of judicial campaigns will create a clear path for people, companies, civic groups and political action committees to impose their political preferences on elected judges. Judges would, at the very minimum, appear beholden to their campaign contributors and other public supporters.

Moreover, the judiciary’s authority depends in large part on the will of the public to respect and abide by its decisions. Allowing judicial elections and concomitant judicial campaigns will impose on the judiciary an unavoidable political element, which will undermine both the appearance and the fact of judicial impartiality and disinterest.

The best way to preserve public confidence in an impartial judiciary is to reject the proposal of a constitutional amendment providing for judicial elections.