Bills to Change Hawaii Judicial Retention by Replacing Commission with Senate

Hawaii's judges are appointed for an initial term by the Governor (or, for district judges, the Chief Justice) from a list prepared by the state’s Judicial Nominating Commission. The pick is then subject to Senate confirmation. However, for subsequent terms, the judge need only return to the Judicial Nominating Commission for reappointment; neither the Governor nor the Senate plays a role. (Hawaii Constitution Art. VI, Sec. 3).

The very first bill introduced in the Hawaii House this year calls for a constitutional amendment removing reappointment decisions from the commission and instead giving the Senate the final word in the reappointment of individual judges and justices, according to Ian Lind. 

The members of the Judicial Nominating Commission are listed here along with who appointed them.

Art. VI, Sect. 3 of the Hawaii Constitution reads:

The governor, with the consent of the senate, shall fill a vacancy in the office of the chief justice, supreme court, intermediate appellate court and circuit courts, by appointing a person from a list of not less than four, and not more than six, nominees for the vacancy, presented to the governor by the judicial selection commission.

If the governor fails to make any appointment within thirty days of presentation, or within ten days of the senate's rejection of any previous appointment, the appointment shall be made by the judicial selection commission from the list with the consent of the senate. If the senate fails to reject any appointment within thirty days thereof, it shall be deemed to have given its consent to such appointment. If the senate shall reject any appointment, the governor shall make another appointment from the list within ten days thereof. The same appointment and consent procedure shall be followed until a valid appointment has been made, or failing this, the commission shall make the appointment from the list, without senate consent.


The chief justice, with the consent of the senate, shall fill a vacancy in the district courts by appointing a person from a list of not less than six nominees for the vacancy presented by the judicial selection commission. If the chief justice fails to make the appointment within thirty days of presentation, or within ten days of the senate's rejection of any previous appointment, the appointment shall be made by the judicial selection commission from the list with the consent of the senate. The senate shall hold a public hearing and vote on each appointment within thirty days of any appointment. If the senate fails to do so, the nomination shall be returned to the commission and the commission shall make the appointment from the list without senate consent. The chief justice shall appoint per diem district court judges as provided by law.

Judicial Retention in Hawaii

The progressive Brennan Center praises Hawaii's system of judicial retention, which uses a commission to determine whether sitting judges should be retained for additional terms. Of course, the important question is who appoints the commission. While the Brennan Center is not troubled that some members of the commission are appointed by the Hawaii State Bar Association, I think it undemocratic to weight the votes of some citizens (lawyers) more than the votes of other citizens in determining who holds powerful positions influencing the direction of the law.

Hawaii Judicial Selection

Good summary by Bill Raftery:

Hawaii: The state’s Governor (or Chief Justice for District Court) is responsible for appointment for a judge’s initial term from a list prepared by the state’s Judicial Nominating Commission. The pick is then subject to Senate confirmation. However, for subsequent terms, the judge need only return to the Judicial Nominating Commission for reappointment; neither the Governor nor the Senate plays a role. (Hawaii Constitution Art. VI, Sec. 3)