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Sunday, November 23, 2014         

OUR VIEW: CHOOSING JUDGES


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State bar needs to explain basis for judicial evaluations


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The state Senate's rejection of Gov. Linda Lingle's nomination of Katherine Leonard to be chief justice of the Hawaii Supreme Court brought to light a flawed system of determining qualification that needs to be fixed. The rejection was based on a finding by the Hawaii State Bar Association that Leonard was not qualified, although no reason was given. The state bar should use a national model to shed light on reasons for such evaluations in the future.

Hugh Jones, the state bar's president, told senators on Tuesday that Leonard was found to be inadequate for the job based on "a modified version" of the American Bar Association's guidelines for evaluating prospective federal judges. A basic difference is that the ABA's evaluation of potential federal judges is made prior to a nomination. Other than that, the Hawaii bar's main modification is the application of secrecy throughout the entire process, including confirmation hearings.

Much of the ABA's evaluation process is confidential. A member of its Standing Committee on the Federal Judiciary from the prospective nominee's judicial circuit is usually assigned to examine the potential judge. That includes reviewing the candidate's legal writings and conducting "extensive" interviews of judges, lawyers and others about the would-be judge's integrity, competence and temperament, among other inquiries.

The prospective nominee is given an opportunity to counter adverse criticism. If the evaluator plans to recommend that the person be rated "not qualified," the White House may decide not to make the nomination or it may ask that a second evaluator conduct an independent review.

If the White House decides to go forward with a nominee with "not qualified" evaluations, the ABA committee submits to the Senate Judiciary Committee a written statement "explaining the reasons" for the rating. The nominee is "assured that the statement will not be disseminated publicly until the day of the (confirmation) hearing."

In the Hawaii evaluation process, the public is not given the reason for a "not qualified" evaluation at any point. That does not serve the public interest, particularly when it comes to the community-crucial post of chief justice.

Jones has said he informed Leonard of the bar's concerns about her qualifications before she was interviewed by the association's 20 directors, but he did not repeat the nature of those concerns publicly, leaving most in the dark.

The result was a Senate debate based on conjecture and innuendo regarding Leonard's leadership or administrative abilities, whatever that might mean. The Hawaii State Bar Association needs to follow the ABA practice of making public the reasons for "not qualified" evaluations of judicial nominees once confirmation hearings begin.






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