The Hawaii State Bar Association’s board of directors’ rating of appeals Judge Katherine Leonard as "unqualified" to be Hawaii’s next chief justice drew strong criticism last night from Gov. Linda Lingle.
The association’s board gave Leonard the rating by a secret vote and did not disclose the reasons as part of its confidential policy to help ensure that the lawyers on the board vote freely on appointees.
But Lingle said the board’s "unqualified" recommendation on Leonard and another of her appointees, Circuit Court nominee Fa’auuga To’oto’o, was "outrageous" and "clearly not based on the legal experience and qualifications of these two highly qualified nominees."
She said she hopes the Senate will find there is "no validity to their ratings."
The controversy over the bar association’s rating erupted at the Senate Judiciary Committee hearing on To’oto’o’s appointment yesterday and promises to resume when the committee holds its hearing at 9:30 a.m. today on Lingle’s appointment of Leonard to a 10-year term as head of the state’s third branch of government.
Lingle named Leonard to replace Chief Justice Ronald Moon, who must retire before he turns 70 on Sept. 4 because of the state mandatory retirement age for judges.
Senate Judiciary Chairman Brian Taniguchi said the committee plans to vote Thursday on Leonard’s appointment as well as seven others to the district and circuit benches. The full Senate would vote on the nominations on Friday, he said.
Two other Lingle circuit bench appointees — Colette Garibaldi and Jeanette Castagnetti — both received "qualified" recommendations from the bar association board, and their nominations sailed through the hearing.
But for To’oto’o, Bar Association President Hugh Jones notified the committee of the board’s recommendation, which prompted some lawyers and others to show up for the hearing that continued for more than four hours before an overflowing crowd in a second-floor conference room at the state Capitol.
Attorney General Mark Bennett said the bar association voting process is an "embarrassment" because it does not notify the nominee of the vote count or the reasons for it, unlike the American Bar Association, which gives the U.S. Senate a detailed written explanation for its unqualified rating for federal judicial nominees.
The confidentiality, he told the committee, does not hold the bar’s board accountable for its vote, which could be a "proxy for all kinds of prejudice, bias and every bad reason you can think of."
Senate committee member Sam Slom said he was "flabbergasted" by the rating for To’oto’o, who received, aside from the bar association, unanimous support from prosecutors, defense lawyers, police and community members as a deserving nominee who would be Hawaii’s first circuit judge of Samoan ancestry.
Slom called the bar association’s recommendation "outrageous and shameful" and urged his fellow committee members to disregard the vote. Sen. Mike Gabbard, another committee member, criticized the voting process, saying it seems "surreal" and "beyond belief."
Jones told the committee the vote was by the board of 20 lawyers elected by about 5,000 members of the bar association. The vote on judicial nominees is by secret written ballot, a process that enables the directors to freely vote on candidates.
As president, he said he would cast a vote only to break a tie, but said he could not say whether he voted.
Lingle said because of the confidentiality, "it is impossible to know whether there is political, gender or ethnic bias on the part of the HSBA.
"I have confidence that the Senate will carefully consider the overwhelming favorable testimony from the legal community and those who know Judge Leonard’s and Judge To’oto’o’s respective bodies of work, as well as their character and integrity," she said.
But Jones said the board members vote on nominees based on criteria that include integrity, legal knowledge and ability, personal experience, judicial temperament, financial responsibility, public service and health.
While he could not disclose the vote, he said he has "no reason to suspect" that any of the directors would vote based on race or gender.
Taniguchi said it might be more helpful if the bar association was more open, but he understands they want to "protect the free flow of information" in doing their job. He said the bar association’s recommendation is one aspect of the confirmation process that should be evaluated in the context of the other testimony.
Unlike yesterday’s hearing, the testimony today from those other than the bar association is not expected to be unanimous.
Leonard’s supporters include Bennett, the Hawaii Women Lawyers, the Carlsmith law firm where she spent most of her legal career, and William McCorriston and his partner, former Associate Justice Robert Klein, who hired Leonard as his first law clerk when he went to the Hawaii Supreme Court.
"We’re a little mystified," said Klein, who was on the high court from 1992 to 2000. "I can’t imagine what the bar association was using as a measure of qualification if they determined that she was unqualified."
McCorriston, former president of the Hawaii State Bar Association, said he is concerned that the association waited until the day before her confirmation hearing to express concern.
"I think the bar association owes an answer not only to the community, but its own members," he said.
Honolulu attorney Eric Seitz, who was the first to make his opposition to the appointment last week, plans to testify today.
Peter Esser, a Honolulu attorney who specializes in appeals, raised questions yesterday by pointing out that Leonard was not Lingle’s first choice for the job on the Intermediate Court of Appeals. Leonard was appointed after the Senate rejected Randal Lee for the post. Also, the governor picked Craig Nakamura rather than Leonard as chief judge of the Intermediate Court of Appeals.
But this year, Lingle picked Leonard for the chief justice post when the other candidates included Nakamura and Mark Recktenwald, her appointee last year to the Supreme Court.
Paul Alston, also a former bar president, said the key question is whether Leonard has the "experience and command and respect of judges, and perhaps, even more importantly, the Legislature and the executive branch, which are really critical to the selection of a chief justice."
He said strong arguments can be made that the chief justice must be able to draw on that reputation, and the question of whether Leonard has that kind of "gravitas" is what has generated the criticism against her.