No lawyer should support a process that is inherently unfair. The current Hawaii State Bar Association process for evaluating judicial nominees, as demonstrated recently in the case of Judge Katherine Leonard’s nomination to be chief justice of the Hawaii Supreme Court, is unfair.
Confidentiality is not the issue. Bar members should be free to express candidly their opinions without the prospect of retribution. The unfairness derives from two sources: (1) The HSBA’s published criteria for qualifications do not appear to be followed; and (2) Neither the nominee, the public nor even HSBA members are informed of the reason(s) a nominee is found to be unqualified.
As to the first issue: The HSBA published criteria for the office of chief justice is the same as for judge of the Intermediate Court of Appeals, to wit: integrity and diligence, legal knowledge and ability, professional experience, judicial temperament, financial responsibility, public service and health.
Bar members were solicited for comments only as to these criteria. Nowhere published are subjective and amorphous criteria such as "gravitas," leadership or administrative skills.
Without being transparent on the reasons for its decisions, no one knows what was found lacking in a nominee or whether the HSBA even followed its published rules for evaluating judicial candidates. Judge Leonard’s experience highlights this problem. On at least four previous occasions she was found qualified by the HSBA and/or the Judicial Selection Commission (which uses similar but not identical criteria). This begs the question: What changed?
Stating the reasons for the HSBA decision would give the nominee and bar members fair notice to address any concerns raised about the nominee, allow the Senate to make an informed decision and protect the nominee from unfair innuendo and speculation.
Contrary to what has been suggested by bar association President Hugh Jones, the federal system provides a good blueprint for a fair and just system. In commenting on the qualifications of federal judges, the American Bar Association maintains confidentiality but discloses the vote (without naming how each committee member voted) and gives the reasons for its "qualified" or "unqualified" rating. To suggest that everything must be kept secret is disingenuous, as the federal system has worked well for many years.
The public testimony on the relevant criteria was overwhelmingly in favor of Judge Leonard. Our information is that the solicited responses by HSBA members to the HSBA Board were also heavily in favor of her nomination.
It is time for lawyers to practice what they preach as far as due process is concerned. Bottom line: Judge Leonard and her family were treated unfairly and subjected to rumor, innuendo and speculation that they did not deserve.
We can, and should, do better.
William C. McCorriston is an attorney and former president of the HSBA; Robert G. Klein is an attorney and former associate justice of the Hawaii Supreme Court.