State Attorney General Mark Bennett, considered a strong possible candidate to be the next Hawaii chief justice, is not seeking the job, leaving Associate Supreme Court Justice Mark Recktenwald as the leading contender for the post.
Bennett, Gov. Linda Lingle’s key legal adviser since she took office in 2002, told the Star-Advertiser last week that he has not applied for the position and plans to enter private practice after his term ends in December.
The decision means Recktenwald is the likely choice to become the state’s fifth chief justice when Ronald Moon must step down from the job before he turns 70 on Sept. 4 because of the state’s mandatory retirement law for judges.
The state Judicial Selection Commission has yet to send names of candidates for the job to Lingle. The Governor’s Office said she would not comment because she has not received the list.
Still, the signs are clear.
"Just talking to attorneys on the street, everybody feels that Justice Recktenwald is the favorite to be named chief justice," said Jack Tonaki, head of the state Public Defender’s Office.
Lingle appointed her former director of the Department of Commerce and Consumer Affairs as chief judge of the Intermediate Court of Appeals in 2007 and named him as an associate justice to the high court last year.
MARK E. RECKTENWALD
» Born: Oct. 8, 1955, in Detroit
» Education: Graduate of Harvard University and University of Chicago Law School
» Career: Reporter, United Press International’s Honolulu bureau, 1981-1983; law clerk for U.S. District Judge Harold Fong, 1986-1987; assistant U.S. attorney, 1991-1997, 1999-2003; partner at Marr Jones & Wang, 1997-1999; director of state Department of Commerce and Consumer Affairs, 2003-2007
» Judicial experience: Chief judge, state Intermediate Court of Appeals, 2007-2009; associate justice, Hawaii Supreme Court, 2009-present
PAST CHIEF JUSTICES
» Wilfred Tsukiyama: 1959 to 1966; appointed by Gov. William Quinn
» William Richardson: 1966 to 1983; Gov. John Burns
» Herman Lum: 1983 to 1993; Gov. George Ariyoshi
» Ronald Moon: 1993 to 2010; Gov. John Waihee
Source: State Judiciary
Lingle’s nomination would be subject to Senate approval, but it is not expected to run into problems. Unlike some of Lingle’s nominees, Recktenwald sailed through the Senate confirmation process both times he was named to judgeships.
"His chances are probably very good," Senate President Colleen Hanabusa said about Recktenwald.
Lingle’s appointment of the chief justice to the 10-year term would solidify her legacy and leave an indelible imprint on the state’s Judiciary.
During her 7 1/2 years as the first Republican governor in 40 years in a state dominated by Democrats, she has named 14 of the state’s 31 circuit judges, five of six appeals court judges and two of the five high court justices.
She also would be naming a chief justice who is the administrative head of Hawaii’s third branch of government with about 1,800 full-time employees and an annual operating budget of more than $130 million.
In addition, if the commission finds candidates quickly enough for Recktenwald’s replacement, Lingle could have a chance to nominate another justice to the high court before she leaves office Dec. 6.
Recktenwald, 54, who would be the first mainland-born state chief justice, declined to comment last week on the Supreme Court job "out of respect" for the confidential Judicial Selection Commission process. The commission must submit the names of four to six candidates to the governor.
Bennett, 57, said he did not apply for the $156,727-a-year job. The commission’s deadline for applicants was Tuesday.
As one of the state’s most publicly active attorneys general on sometimes controversial issues, Bennett rankled some in the community and the Legislature.
But Bennett said any opposition to his nomination was not a factor in his decision. "I just decided I wanted to return to private practice," he said.
Hanabusa, also a lawyer, said it would have been hard to say Bennett was unqualified for chief justice. "You cannot take away from Mark Bennett that he’s a very competent attorney," she said.
But his active stance caused "hard feelings" among some legislators, Hanabusa said. She also noted his role last year in personally arguing that the U.S. Supreme Court should essentially lift restrictions on the potential sale of ceded lands might have drawn opposition from some native Hawaiians. The justices agreed with him.
A former assistant U.S. attorney who prosecuted cases, Recktenwald fits Lingle’s penchant for naming jurists with law enforcement backgrounds, which concerns some members of the bar.
Although Hanabusa suggests that Recktenwald has not been on the bench long enough to establish a clear judicial record, some criminal defense-oriented lawyers think he might lean toward the prosecution.
Recktenwald, however, has issued rulings upholding prosecutions and overturning convictions. A recent example was the so-called "dirty dancing case" last month. It involved a bar hostess convicted of prostitution after she engaged in "dirty dancing" with an undercover police officer after he bought her two drinks for $40 each.
Recktenwald voted with other high court members to set aside the conviction.
Public defender Tonaki said Lingle’s legacy might mean a more conservative court in criminal law cases, but thinks Recktenwald will be more moderate. "I think and hope he will be more toward the center," he said.
Tonaki said he has gotten to know Recktenwald since he has been on the bench."He has integrity. He’s a good man," Tonaki said. "Certainly, I don’t see anything that would not qualify him."
Tonaki said he would support Recktenwald’s nomination.
Sheri Sakamoto, chairwoman of the Judicial Selection Commission, said she could not discuss commission matters because of confidentiality rules, but the commission will submit names of candidates to Lingle "sometime soon."