A decade ago, when he was on the team of state lawyers that prosecuted Bishop Estate trustees for misconduct, Hugh Jones was no stranger to public outrage and controversy. These days, as president of the Hawaii State Bar Association, he finds himself back in the fray.
On Aug. 6 – the day after the U.S. Senate confirmed Elena Kagan as an associate justice of the U.S. Supreme Court – the state Senate rejected the nomination of Katherine Leonard as chief justice of Hawaii’s Supreme Court. The vote came three days after the bar association’s board of directors rated Leonard "unqualified" for the job. Leonard’s supporters slammed the rating – especially the process leading to it.
Where the American Bar Association’s designation of Kagan as "well qualified" included documentation to support that assessment, the HSBA’s rating came with nothing else. No names. No reasons. No explanations.
Now, with confirmation hearings scheduled next week for Associate Justice Mark Recktenwald – Gov. Linda Lingle’s next choice for chief justice – the HSBA’s board is back at work. Jones is on the job, too, explaining the HSBA’s methods and defending its policies but also suggesting that changes might be coming. Out of fairness, the board won’t alter its evaluation process for Recktenwald, but Jones said in an e-mail interview that "we recognize that the high profile of this nomination process has produced questions from the public and the media."
Question: The federal judicial ratings process conducted by the American Bar Association includes testimony and a public statement that provides reasons why a candidate was found to be "Very Qualified," "Qualified" or "Unqualified." Why doesn’t the Hawaii State Bar Association do the same?
Answer: It would be very difficult to follow the ABA process entirely for a number of reasons, including that:
» The ABA has far more staffing and financial resources to perform this function.
» The ABA generally has the luxury of far more time to complete the process for federal judicial nominees.
For example, we had only about 10 days to review input from members and background materials, schedule and conduct interviews with all eight of the nominees just considered (one chief justice, four District Court and three Circuit Court), debate and deliberate, vote and communicate our testimony to the Senate.
The HSBA must work with the time afforded by the Senate, so the time frame for the chief justice appointment was shortened, but we anticipated that, assigned more directors to do the legwork, and reviewed the materials and interviewed the nominee. Our process, although compact, was thorough and in-depth. As you know, it’s difficult to put the reasons 20 directors voted the way they did into one succinct statement. Our policy has been to not give rationale for a vote, but I can assure you that the insinuation of "double standards" or "bias" were not factors.
Q: Understandably, there is a need for a certain amount of anonymity when it comes to soliciting information from lawyers about a judge’s qualifications. But as the fallout from the Katherine Leonard rating suggests, doesn’t the extent of the HSBA’s secrecy only end up damaging the process and the association’s credibility?
A: The HSBA process is not secret. The policy has been explained to members frequently and followed for all nominees.
The nominee is fully apprised of the process upon nomination, and all negative comments or concerns raised are communicated to the nominee to provide an opportunity to address these issues during the interview.
As comparisons are made to the ABA process, it should be pointed out that the ABA review members are from all over the country, and are unlikely to appear before the nominee should their appointment be confirmed.
That said, we recognize that the high profile of this nomination process has produced questions from the public and the media, and we will listen to our members and review the process based on their comments. An HSBA committee is currently studying comments which have been solicited from the members. In the process of soliciting input from members, however, I point out that many members were thankful for the opportunity to share their views and experiences about a nominee confidentially.
Q: What was your personal reaction to the criticism of the HSBA following the announcement of the Leonard rating and her subsequent rejection by the Senate?
A: The controversy was not a personal issue but a professional one. My involvement did not involve me in my personal capacity but my capacity as president of the HSBA. I do think there is great misunderstanding and lack of knowledge about the particulars of the existing process for reviewing the qualifications of nominees, including the incorrect perception that it’s a "secret" or "anonymous" process.
Q: Had the Senate approved her, Leonard would have been the first woman to become chief justice of the Hawaii Supreme Court and the first graduate from the William S. Richardson School of Law to sit on the court. What kind of pressure did that put on the board?
A: The fact that the nominee was a Hawaii law school graduate naturally is something that HSBA directors would value and "feel good" about. Thus you can imagine it was difficult for them to vote her "unqualified" for the position. It was not also an easy thing for a board of 10 women and 10 men to vote the first female nominee "unqualified." Ultimately the question is whether the nominee is qualified, not their ethnicity, gender, school of graduation or place of birth.
Q: Should Mark Recktenwald be confirmed as chief justice, do you think the process allows Gov. Linda Lingle enough time to nominate his replacement before her term expires?
A: That depends on whether the Judicial Selection Commission has sufficient time to advertise the judicial vacancy, set a realistic application deadline, schedule interviews with applicants and "resource persons," check references and develop a list of not less than four nominees to present to the sitting governor.
Q: Are there any issues or concerns that are unique to lawyers in Hawaii, and if so, what are they?
A: Hawaii lawyers face many issues and challenges right now. As with other sectors of our economy, the economic crisis has affected the practice of law. Fewer law graduates are finding employment and many firms have downsized substantially.
The economy has led to increased stress and mental health issues for many in the practice who have been dislocated by the economy. Scores of government attorneys and judges are on furlough and have had pay reductions but generally must perform the same amount of work in less time, and the wheels of justice appear to be turning more slowly.
Another issue faced by Hawaii lawyers is the possible adoption of the Unified Bar Exam, which would allow attorneys who pass this exam in other states to be admitted to practice in Hawaii without sitting for the Hawaii Bar Exam. Lawyers are also coping with Mandatory Continuing Professional Education mandated by our Supreme Court effective Jan. 1, 2010, and the HSBA has provided training to 1,200 attorneys so far to help them meet this annual requirement.