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Hawaii voters will be asked to consider a proposed constitutional amendment on the Nov. 5 ballot aimed at clearing up the process of nominating state judges and justices so that it is more efficient and uniform.

It’s the second of two statewide ballot questions that will be put before voters in this year’s election.

In Hawaii, nominees to the Hawaii Supreme Court, the Intermediate Court of Appeals and the state’s Circuit Courts are made by the governor. Nominees to the state’s District Courts are appointed by the chief justice.

While the four levels of courts share much in common — for example, the names of all nominees come from the Judicial Selection Commission and all appointments are subject to state Senate confirmation — they differ in two ways.

The first is that, while the selection commission presents the governor with of a list of not less than four and not more than six names for vacancies on the Supreme Court, the ICA and the Circuit Courts, the list for the chief justice must have no less than six names for District Court vacancies.

The ConAm, if passed, would change the process for the district court so that it is the same as the other three courts.

The second difference has to do with the time frame of the appointments and how and when the governor and Senate act on them.

The Senate has 30 days to consider nominees to the supreme court, the ICA and the Circuit Courts, a process that typically involves confirmation hearings and votes by the Senate Judiciary Committee and the full Senate. But if the Senate does not act in time, the nominee is automatically confirmed.

Meantime, if the Senate rejects the nominee, the governor has 10 days to pick someone else from the commission list. The consent process then starts again until a judge or justice is approved. Failing that, the decision falls to the commission with or without Senate consent.

A similar process applies for the chief justice and district court nominees, but with one difference: If the Senate does not act, the decision goes directly to the Judicial Selection Commission without Senate consent.

If approved by voters, the amendment would make the appointment and consent procedure for District Court appointments the same as the other three courts.

Why amend the constitution?

According to on the legislation that led to the ConAm, it would “reduce confusion and provide clarity” for the judicial appointment process.

Another reason is that, due to the Legislature being a part-time body, the Senate must convene special sessions throughout the year for the sole purpose of consenting to district court appointments.

The ConAm would also reduce confusion, “promote government efficiency, and provide clarity for the judicial appointment process,” .

The ConAm is the idea of Senate Judiciary Committee Chair Karl Rhoads, that placed the question on the ballot this fall. There was no testimony for or against it, and just three of the 76 legislators voted against it.

It is not unheard of for a judge to be confirmed without public Senate confirmation. On March 13, 2020, for instance, Peter Kubota was appointed to be a Circuit Court judge of the Third Circuit, which encompasses Hawaii County.

While Rhoads vetted the nomination, which included reviewing Kubota’s application and court documents, and while he and other senators held meetings with Kubota, the Senate recessed from the 2020 session on March 16 because of the coronavirus pandemic.

An in-person hearing was not advised, so once the 30-day time frame expired, Kubota was confirmed April 12 by the constitution.

Rhoads said Kubota, who had served as a per diem district and Family Court judge in the Third Circuit since 2019 and had been in legal practice in Hilo for 20 years, was clearly qualified for the job and that his colleagues agreed.

“It wasn’t worth the risk of bringing everybody back in and spreading Covid for someone that we were about 99.9% sure we were we’re going to approve anyway,” he said.

Rhoads admits worrying, though, that many voters might leave the ballot question blank, likely killing it.

For any proposed amendment to be ratified it must be approved by a majority of all yes and no votes, and in addition that majority must constitute at least 50% of the total votes cast in the election, including blank and “overvotes,” meaning when someone casts more votes in a contest than is allowed.

The question about the judges is wonky and wordy. While the other question — on same-sex marriage — is just 17 words long, this question is over 150 words and includes four numbered sections.

“I would say that because it’s a fairly complicated and not incredibly important item, it probably will fail because blank votes count as no votes,” said Rhoads.

The senator’s solution to blank votes is to get rid of the requirement that they be counted.

“That’s a ConAm for next year, because I think that’s ridiculous,” he said.