The Hawaii State Bar Association will be reviewing its policy of evaluating judicial nominees, but will use the current process for rating Gov. Linda Lingle’s chief justice nominee, Mark Recktenwald.
Hugh Jones, bar association president, said there’s not enough time to change the policy for Recktenwald’s appointment. It’s also a matter of fairness, he said.
"You can’t change horses in the middle of the stream," he said.
The HSBA became the target of fierce criticism by Lingle and supporters of her first chief justice nominee, Katherine Leonard, after HSBA directors voted her "unqualified" for the job.
The Senate rejected the Republican governor’s appointment by a 14-8 vote on Aug. 6.
Lingle named Recktenwald on Friday from the remaining five candidates submitted to her by the Judicial Selection Commission. The appointee is subject to Senate confirmation and would replace Chief Justice Ronald Moon, who must step down by Sept. 4, when he turns 70.
The isle bar association has been rating judicial nominees since 1990 to help the Senate evaluate the nominations. The HSBA has rated very few candidates "unqualified" — only three before Lingle took office and three after.
Sharon Himeno, the only other nominee to the Hawaii Supreme Court rejected by the Senate (in 1993), received a favorable rating.
It’s usually when the HSBA rates a candidate "unqualified" that its process comes under fire, and with the stakes at the highest with a chief justice nominee, the lawyers’ association came under unprecedented criticism, including from past bar presidents who supported Leonard’s nomination.
"I don’t remember this volume and intensity of publicity about an unqualified vote," said Jones, a deputy attorney general.
The focus was on the secrecy surrounding the HSBA’s evaluation process and its policy of not disclosing the reasons for the vote by the 20-member board of directors. Lingle called the Leonard vote "outrageous."
She said there is no way to determine whether "political, gender or ethnic bias" played a role in the rating of a candidate she and others maintained was qualified for the 10-year term.
The HSBA had sent e-mails to its 4,600 members soliciting input on the nomination, a policy adopted in 2003 under then-President Doug Crosier.
Crosier told the Star-Advertiser last week that previously the HSBA board would meet, usually on short notice, to evaluate the judicial nominee; interview the candidate; then vote, without any kind of formal process soliciting comments from the lawyers.
"We wanted to expand the evaluation process so we could have an honest and free flow of comments from the bar at large," he said.
But at the same time, the HSBA wanted to keep confidential the identities of the lawyers who, rightly or wrongly, felt they might face retaliation should the nominee be confirmed and they end up in front of the judge, Crosier said.
In Leonard’s case, the HSBA staff redacted the names of lawyers from their written comments, and presented the remarks to a three-member board committee that categorized the comments and presented them to the board, Jones said.
Jones said he discussed the concerns and criticism raised in the comments during an hourlong phone conversation and another phone conversation with Leonard so she could prepare for the interview by the board. The board interviewed her for two hours, then held a "robust discussion and debate" for an hour and a half before voting, Jones said.
The board members submitted sealed and unsigned written ballots, which were counted by the executive director, Jones said.
Under this process, Jones told the Senate Judiciary Committee, he would not be able to explain why the directors found Leonard to be unqualified.
"Each could find the nominee failed to satisfy one or more of the criteria (for the job), or is unable to perform the duties of the office, for different reasons," he said.
But Jones said Leonard knew about the criticism and the negative comments, which he shared with her and which were discussed during the interview. She could have "freely and thoroughly" addressed those concerns when she appeared before the Judiciary Committee, Jones said.
Leonard was not asked by the committee about the board’s concerns nor did she disclose them.
"The process," Jones said, "was fair to the nominee."