The Senate Judiciary Committee chairman indicated yesterday he’s inclined to support chief justice nominee Mark Recktenwald, who received overwhelming praise during a hearing yesterday on his appointment to lead the state’s third branch of government.
The only person to testify against the nomination was a Honolulu civil rights lawyer who fears that Recktenwald’s written opinions show an apparent pattern of "going backward on certain constitutional rights."
But Recktenwald told the senators he believes the state Constitution guarantees broader rights to Hawaii residents than does the U.S. Constitution.
"I understand and embrace that principle," the associate Supreme Court justice said. "I try to apply it in the cases I’ve decided and that’s a settled part of our law."
Sen. Brian Taniguchi, chairman of the committee, said he doesn’t "quite agree" that Recktenwald will lead the court in a new direction. He said Recktenwald is only one of five members on the high court and he seems more of an administrative "team player" than a person who would push for a new jurisdictional direction.
"I think from the testimony today, it seems as if I’d be leaning toward Justice Recktenwald to be chief justice," he said.
The five-member committee is scheduled to vote on the appointment on Wednesday. The full Senate would then vote the next day on whether to approve Recktenwald to a 10-year term as the state’s fifth chief justice.
Recktenwald, 54, would replace Chief Justice Ronald Moon, who must retire because of the state’s mandatory retirement law before he turns 70 on Sept. 4. His last day in office is Tuesday.
Gov. Linda Lingle appointed Recktenwald after her first choice of appeals Judge Katherine Leonard was rejected by the Senate by a 14-8 vote earlier this month. Some senators had expressed concerns about her ability to lead the judiciary.
The rejection came after the Hawaii State Bar Association’s board of directors found Leonard "unqualified" and the Judiciary Committee voted 4-1 against her nomination.
Recktenwald, who was born in Detroit and would be the state’s first mainland-born chief justice, told the committee he came to Hawaii 25 years ago and later married the first person, Gailynn, he met after he got off the plane.
A graduate of Harvard University and the University of Chicago School of Law, he worked as a civil attorney and a federal prosecutor during two stints with the U.S. Attorney’s Office before Lingle named him as the head of the Department of Commerce and Consumer Affairs in 2003.
Lingle appointed him chief judge of the Intermediate Court of Appeals in 2007 and associate justice on the high court last year.
Just as he sailed through his three previous Senate committee hearings for the Cabinet post and judgeships, Recktenwald received strong support. He was praised for his humble yet effective style of leadership, his abilities and fairness.
Among those testifying in support were Lingle’s senior policy adviser, Linda Smith; Attorney General Mark Bennett; other Lingle Cabinet members; and state Public Defender Jack Tonaki. Acting city Prosecutor Douglas Chin submitted testimony in support of Recktenwald, and Hawaii State Bar Association President Hugh Jones said its board found Recktenwald qualified for the job.
Recktenwald refrained from disclosing any judicial philosophy, saying one cannot predict how a judge will rule over 10 years.
But he agreed that the law in Hawaii differs from mainland jurisdictions and the state Constitution provides a wider range of protections than the U.S. Constitution, a principle that should be "cherished and upheld."
"Our constitution is a unique and wonderful document that reflects the values of us as a people," he told the committee.
Honolulu civil rights lawyer Daphne Barbee-Wooten was critical of several of Recktenwald’s opinions, including one in which he overturned a trial judge’s ruling that a bullet found in a woman’s bra was too trivial to prosecute. She said another involved an indigent mother’s rights to an attorney in a case in which she lost custody of her child.
In her written testimony, Barbee-Wooten was also critical of an opinion by Recktenwald that upheld a trial judge’s decision setting aside a malpractice verdict favorable to Barbee-Wooten’s family.
Honolulu criminal defense lawyer Brook Hart said he agreed with Barbee-Wooten that some of the decisions were "wrongly decided," but said the issue isn’t those opinions.
"The issue is, does this man have the integrity, the intellectual honesty, the skills, the leadership experience and the confidence of the community to be our next chief justice?" he told the committee. "The answer from my perspective is a resounding yes."
Taniguchi said he was satisfied from the testimony that Recktenwald has the administrative experience and leadership skills, which senators cited as a problem with Leonard’s appointment.
He cited Recktenwald’s experience as chief judge of the appeals court and also the "very strong testimony" from the Department of Commerce and Consumer Affairs employees about how he ran the department.