POSTED: 1:30 a.m. HST, Aug 6, 2010
LAST UPDATED: 1:38 a.m. HST, Aug 6, 2010
The state Senate Judiciary Committee voted yesterday against recommending appeals Judge Katherine Leonard as Hawaii's next chief justice, leaving her with an uphill fight to win confirmation when the Senate considers her nomination today.
THE COMMITTEE'S VOTE» Chairman Sen. Brian Taniguchi: No
» Sen. Dwight Takamine: No
» Sen. Clarence Nishihara: No
» Sen. Mike Gabbard: No
» Sen. Sam Slom: Yes
SPECIAL SESSION AGENDA» 9 a.m. -- District Court nominees
» 10 a.m. -- Circuit Court nominees
» 11 a.m. -- Chief Justice nominee Katherine Leonard
Where: Auditorium, Chamber Level, Hawaii state Capitol
But the committee's 4-1 recommendation that the Senate not confirm Leonard to a 10-year term on the Supreme Court was a critical setback for what Lingle has described as the most important appointment of her two terms as governor.
Earlier this week, Senate President Colleen Hanabusa (D, Nanakuli-Makaha) said most senators would likely take their lead from the committee's recommendation.
Several senators, speaking privately, predicted Leonard would not be confirmed. Private vote counts yesterday afternoon showed that a majority of senators were prepared to follow the Judiciary Committee's recommendation. By late last night, however, Lingle's advisers heard reports from the Senate that the vote might be closer than the private counts suggest.
Leonard, 50, an associate judge on the state Intermediate Court of Appeals since January 2008, would replace Chief Justice Ronald Moon, who must step down before he turns 70 on Sept. 4 because of the mandatory retirement age for judges.
"I have serious doubts this nominee can lead the Judiciary at this point in her career," Sen. Brian Taniguchi (D, Moiliili-Manoa), chairman of the Judiciary Committee, said before a packed second-floor conference room yesterday morning.
Taniguchi cited criticism of Leonard's leadership and administrative abilities and the fact that the Hawaii State Bar Association's board of directors rated her "unqualified."
Sen. Sam Slom (R, Hawaii Kai-Diamond Head), the only member of the committee to recommend confirmation, denounced the bar association's findings. He said Leonard was the "right person and at the right time to lead us in a different direction."
"I think the very fact that she is a woman concerns some people, particularly the old-boy network that's alive and well in this state," Slom said.
Taniguchi said he found some of Slom's remarks "offensive."
Afterward, Taniguchi said Slom's criticism is "not reality." The governor has appointed a "good portion of the Judiciary," he said. "If there's an old-boy network here, it's her creation in part."
Leonard, who spent most of her legal career in the prestigious Carlsmith Ball law firm and rose to become a partner, sat through the committee proceedings and later spoke briefly to reporters.
"I just want to say I am disappointed but I am not discouraged," she said. "I believe I am qualified for this position. I'm going to continue to try and answer questions, and I look forward to tomorrow's confirmation vote."
Lingle said Leonard is "eminently qualified" and a "true leader who will set the tone for jurisprudence in the state for the next decade."
Leonard and Lingle's Circuit Court nominee Faauuga To'oto'o were given "unqualified" ratings by the bar association's 20-member board. The Judiciary Committee approved To'oto'o's appointment yesterday.
Lingle said the committee's recommendation against Leonard "makes no sense and creates a double standard."
But Taniguchi said that other than the bar association's findings, To'oto'o received unanimous support, while some individuals opposed or raised concerns about Leonard.
"I think we need someone who can lead the Judiciary," he said. "I'm not sure that, having been in the Judiciary for only two years now, she has that capability. That was my primary concern."
State Attorney General Mark Bennett said he hopes the Senate "will put principle above politics" and confirm Leonard. He declined to elaborate on what he meant by "politics."
Leonard would be the state's first female chief justice and the first graduate of the University of Hawaii's William S. Richardson Law School to serve on the Supreme Court.
Leonard's allies, including several female lawyers, telephoned senators yesterday on her behalf. Bennett wrote letters to senators with lengthy excerpts of testimony from supporters who have known, taught or worked with Leonard, and he also noted a Star-Advertiser editorial urging confirmation.
Republicans, however, also began to harshly denounce Senate Democrats, an indication that they too thought Leonard's chances were slipping.
Senate Minority Leader Fred Hemmings (R, Kailua-Waimanalo-Hawaii Kai) said Democrats were using "fear, falsehoods and petty politics" against Leonard.
State House Republicans described it as a "witch hunt" to deny a Republican governor a significant appointment.
Jonah Kaauwai, the state GOP chairman, said Democrats should be ashamed. He said voters should hold Democrats responsible in November.
Republicans have described Senate Democrats as hypocritical because the Senate passed a resolution in April urging Lingle to consider gender equality when appointing judges. The resolution passed 23-2, with Hemmings and Slom voting no.
Meanwhile, Dante Carpenter, chairman of the Democratic Party of Hawaii, was preparing to send a letter to the bar association critical of the process used to rate judicial nominations. The bar association rated Leonard "unqualified" but did not disclose the reasons, citing the need for attorneys to be able to freely and confidentially review a nominee without fear of reprisals from judges who get negative ratings.
"I think it's about time that they abandon their secret-society operation," said Carpenter, who believes the process should be more open and transparent.
If Leonard is rejected by the Senate, Lingle will have 10 days under the state Constitution to make another selection from the remaining five candidates on a list sent to her by the Judicial Selection Commission.
The five are Associate Justice Mark Recktenwald of the Supreme Court, Chief Judge Craig Nakamura of the Intermediate Court of Appeals, appeals Judges Dan Foley and Richard Pollack, and Circuit Judge Bert Ayabe.
Lingle has already appointed two of the five Supreme Court justices, five of six appeals court judges and about half of the 33 circuit judges. Those appointments were approved by the Senate, which has advise and consent power over judicial nominations.
Star-Advertiser reporter B.J. Reyes contributed to this report.