The Strategy Against Judge Leonard

Larry Price
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Wednesday - August 11, 2010
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Here in Hawaii, judges are nominated by the governor from a list of no fewer than four and not more than six names submitted by the Judicial Selection Commission.

A judge’s nomination is subject to confirmation by the state Senate. Each judge is initially appointed to a 10-year term. After initial appointment, the Judicial Selection Commission determines whether a judge will be retained in office (Article VI , 3 and 4 of the Hawaii Constitution).

Knowing this, taxpayers should wonder why members of the Hawaii Bar Association are so interested in whom the governor appointed to the fill a vacancy. It’s all pretty clear cut, and on the surface there doesn’t seem to be any room for political maneuvering. The Judicial Selection Commission submits names it considers qualified and the governor picks a name and sends it to the Senate Judiciary Committee for confirmation.

The governor doesn’t pick a name out of thin air. That’s what made the Hawaii State Bar Association’s “unqualified” rating for Chief Justice nominee Katherine Leonard so strange. The chairman of the Senate Judiciary Committee announced, even before his committee quizzed the nominee, that he doubted the candidate had the ability to lead the judiciary.

It was heartwarming to learn that more than 100 people, including lawyers and retired judges, submitted testimony in support of the governor’s nomination of Judge Leonard. This is classic party politics. I know a lot of people will disagree, but let me explain how this choreographed attack is linked to the gubernatorial election.

First, local lawyers wanted someone they know more about. Specifically, most of them were counting on Lingle to appoint Mark E. Recktenwald, currently an associate justice on the Supreme Court. He has a long history of favorable encounters with the state Legislature. He is well-known and well-liked. The only thing local lawyers know about Leonard is that she is very intelligent, a “straight arrow,” and as a member of the Intermediate Court of Appeals has never had any of her 155 rulings overturned.

Second, there are no women on the Judicial Selection Committee. Some lawyers are not comfortable with the idea of a female chief justice.

Well, they’d better get used to the idea, because she will most certainly be confirmed by the Senate in due time.

Why? She’s a graduate of William Richardson Law School, just like Senate president Colleen Hanabusa. Is there anyone who thinks Hanabusa would turn her thumbs down on a female nominee while she is in a battle for a seat in Congress? That would send the wrong message to all the voters out there who are interested in gender equality.

Lastly, if the lawyers can kill Leonard’s nomination, they seem to think it will force the governor to appoint Recktenwald in her place. What this would do is create a vacancy on the Supreme Court that would have to be filled by the newly elected governor. Of course, the lawyers believe that it will be a Democrat, and his first chore would be to nominate a Supreme Court justice like a prize for winning the election.

OK, I can envision the skepticism on your faces. Relax, time will tell.

Now, if you come from that group of naive voters who think members of the judicial fraternity are not political, think again.

And don’t believe that once they don their black robes they drop their political affiliations and become pure legal scholars. There is no evidence that is true, although, in the case of Leonard, it may be the case.

Which is what probably worries our secretive local lawyers most of all, even if they won’t say it out loud.

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