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Monday, September 01, 2014         

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Justice and gender

Katherine Leonard would be the first woman to serve as chief justice on the Hawaii Supreme Court. Does it matter?

By Lee Catterall

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H awaii was quick during the year of statehood to place a woman on the state Supreme Court. Since then, the state has been slow to name other women to the judiciary. In fact, it took 34 years before another woman was appointed to the Supreme Court.

While gender may not be mentioned publicly, it looms in the background as senators conduct hearings this week on Gov. Linda Lingle's nomination of Katherine Leonard as chief justice of the high court.

A resolution approved by the state Senate this year called for more women judges. A year ago, 27, or 35 percent, of Hawaii's 77 judges were women, exceeding the 33 percent that a report by the New York-based Center for Women in Government and Civil Society called "critical mass"—the point at which women start exercising significant influence."

Since then, seven women have announced their early retirement from the Hawaii bench. That has reduced their numbers by nearly one-fourth, prompting the Senate resolution calling for Lingle to "use and consider gender equality when appointing judges and justices in the future."

In this context, Leonard would seem to be a slam dunk. But her supporters aren't so sure.

"Her gender may be being used against her," said Lane Hornfeck, who heads the Hawaii Women Lawyers' Judicial Equity Committee, who cited criticism that Leonard lacks administrative experience. "There may be a double standard being applied to her."

THE FIRST woman to be named to Hawaii's Supreme Court was Rhoda V. Lewis, appointed in 1959 by Republican Gov. William Quinn. Lewis had been an assistant state attorney general and registered as a Republican only a year before her appointment. When her term expired in 1967, Democratic Gov. John Burns chose not to reappoint her, apparently for partisan reasons.

By 1970, only 16 women were practicing law in Hawaii, according to the Hawaii State Bar Association. Betty Vitousek that year was appointed to the Family Court bench, becoming the only woman in the Judiciary at the time. By 1975, the number of women practicing law rose to 44, but that accounted for only 2.5 percent of Hawaii's lawyers. About 40 percent of the state's 47,000 lawyers now are women.

No other woman was appointed to the state's high court until 1993, when Gov. John Waihee nominated Paula Nakayama, who is serving her second 10-year term, authorized by the Judicial Selection Commission. She is the only woman now on the five-justice court. If Leonard's nomination is confirmed, men still would have a 3-2 majority on the court.

Elsewhere, women jurists in high places are more common. Twenty of the country's state chief justices are women. California Gov. Arnold Schwarzenegger has nominated Tani Cantil-Sakuye to be the Golden State's first woman chief justice, giving women a majority on California's Supreme Court for the first time. Three other states now give women a majority on their high courts.

BUT BEYOND gender equity, how important is it that women wear the black robe? Retired U.S. Supreme Court Justice Sandra Day O'Connor has famously remarked that "at the end of the day, a wise old man and a wise old woman will reach the same conclusion in deciding cases."

Conversely, after hearing a case last year involving the strip search of a 13-year-old girl, U.S. Justice Ruth Bader Ginsburg said to USA Today of her fellow justices, "They have never been a 13-year-old girl. It's a very sensitive age for a girl. I didn't think that my colleagues, some of them, quite understood."

When asked if she experienced a case with such diverse perspectives in her 20 years on the Hawaii's Circuit Court—where she was the first woman to be named to such a post—retired judge Marie Milks gave an emphatic "yes." However, she declined to comment further because of the growing controversy about Leonard's nomination.

"I certainly appreciate the significance of nominating a woman for this position," along with her University of Hawaii law degree, Honolulu lawyer Eric Seitz wrote in a letter to the bar association in opposing Leonard's nomination.

However, Seitz noted that Leonard has only two years of experience as an associate judge on the state Intermediate Court of Appeals. He added that he was "not aware that Judge Leonard has any experience as an administrator, let alone in any job equivalent to the leadership position for a branch of state government."

Karl Kobayashi, head of Leonard's Carlsmith Ball law firm, said in a letter to the media that Leonard has "assisted with management" of the firm and performed tasks that "have given her practical insight into leading and managing a private business enterprise."

Hornfeck said it was "just wrong" for Seitz to attack Leonard's administrative experience "because he admits in his submission to the HSBA that he has no personal experience or knowledge of her background."

In addition, she said, administrative experience "wasn't something that was a factor in appointing Chief Justice (Ronald) Moon, or frankly, any of the other three chief justices we've had."






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