POSTED: 1:30 a.m. HST, Oct 25, 2010
The confirmation of President Barack Obama's appointment of U.S. Magistrate Leslie Kobayashi as a U.S. district judge to fill a 15-month-old vacancy has been delayed.
Kobayashi's nomination was unanimously approved by the Senate Judiciary Committee in August, but she is one of 23 Obama judicial appointments that Senate Republicans have blocked from a Senate vote.
In the meantime, the federal bench here has been scrambling to cope with the workload with one less full-time judge.
Members of the legal community say it has not reached a point that has caused undue delays in cases here. But the fear is if the vacancy is not filled soon, the workload could cause postponements and other problems, particularly in civil cases.
"There's always an impact," Chief U.S. District Judge Susan Oki Mollway said about the vacancy. "The more capacity we have, the sooner we can handle things."
Hawaii's allotment of four full-time district judges was left one short when Helen Gillmor took senior status June 30, 2009. Gillmor joined Alan Kay and Samuel King as senior judges who work part time, handling a limited number of cases.
Kobayashi, 53, a federal magistrate judge here since 1999, was appointed by Obama in April and sailed through the Senate Judiciary Committee.
But the Senate vote on her and 22 other Obama judicial nominations has been held up by Republicans, according to Democratic Senate Judiciary Chairman Patrick Leahy of Vermont.
After the Senate recessed on Sept. 29 without acting on the nominations, White House press secretary Robert Gibbs indicated that Obama is "keenly aware" of the appointments and would want the Senate to vote on them during the session that convenes Nov. 15.
If the Senate does not act on them before the session ends, Obama will have to submit the appointments next year to keep them alive.
U.S. Sen. Daniel Inouye talked to Senate Majority Leader Harry Reid and sent a letter Sept. 30 asking him to take steps to ensure the nominations will be considered, Inouye spokesman Peter Boylan said.
"It is my priority that noncontroversial judges get confirmed, as justice suffers where there are long unfulfilled vacancies," the senator wrote.
Several of the 23 appointments have been criticized by Republican senators, but Kobayashi's is not among them and her appointment is not considered controversial.
If Kobayashi's appointment is not approved during the session, Inouye will push for Obama to renominate her next year, Boylan said.
But that would mean Hawaii will have the vacancy for several more months.
Mollway said the federal judiciary has been helped by the three magistrate judges who are respected enough that lawyers agree to let them hear civil cases.
Mollway said the court also has the option of calling in visiting judges, and that if necessary, that is what it would do.
She noted that criminal cases have priority because they are governed by speedy-trial rules.
"The ultimate effect gets felt in civil cases," said federal Public Defender Peter Wolff.
Honolulu civil lawyer Mark Davis said the current judges have been "very adept" at "navigating around the problem."
But attorneys fear that a major, complex case taking weeks or months that would tie up a judge's time will create more problems if the vacancy continues into next year.
They note that Hawaii's first federal death penalty trial, involving an Army veteran charged with murdering his 5-year-old daughter, is scheduled to start in January. The trial of Naeem Williams will be the first death penalty trial here since capital punishment was abolished in the 1950s.
"I think that definitely will cause some problems," Davis said.