When the Hawaii State Bar Association board of directors rated Judge Katherine Leonard as "unqualified" to be chief justice of the Hawaii Supreme Court, it brought the organization’s judicial review process into question. Many in the community thought the HSBA should have provided reasons for its decision.
In separate commentaries, HSBA President Hugh Jones and past president Rai Saint Chu defended the process. Jones stood on precedent, saying the process is the same as previous judicial reviews. Chu defended the good intentions of HSBA members who provided input and the careful and fair deliberation of the 20-member board.
The furor died somewhat when Associate Justice Mark Recktenwald received a "qualified" recommendation from HSBA, but there are several important facts that should be vetted before this controversy is put to rest. First, it’s worth stating the obvious. HSBA is not the deciding entity in judicial nominations, merely one organization providing input to the Hawaii Senate Committee on Judiciary and Government Operations that then chooses whether to recommend confirmation of the nominee by the full Senate. The committee incorporates HSBA’s recommendation along with testimony from anyone in the community wishing to voice their opinion.
Second, HSBA makes its recommendation only after input from its 7,000-member body and an interview of the nominee. The recommendation appropriately comes without explanation.
Why? It’s not necessary.
HSBA’s intention is to state whether the nominee is prepared to serve, not to detail his or her strengths and weaknesses.
Providing detail behind the HSBA board decision, can only serve to hurt the nominee. For example, describing the nominee’s adequate or inadequate administrative abilities, strong or weak leadership skills, erudite or lackluster legal knowledge, admirable or scandalous personal life, would at best be argumentative and at worst, embarrassing for the nominee. Whose benefits from this? No one.
The current process respects the career of the nominees. Comments regarding their professional and personal lives could easily be remembered long after they are accurate or even relevant. A nominee found to be unqualified this year, may be eminently qualified five years from now. Yet, he or she may never see a later opportunity for balanced public vindication unless the person is again nominated for a judgeship and reviewed by HSBA.
It has been noted, but not sufficiently appreciated, that any HSBA vote or detailed comments made public could lead the nominee to subtly or even subconsciously retaliate against those who voted or voiced opinions against him or her. The current procedure recognizes that attorneys must represent their clients before judges, and anything that is prejudicial to the attorney, and hence his client, would be a disservice to both and diminish the integrity of our legal system.
Divulging details of HSBA’s deliberations of nominees could make attorneys have second thoughts about being candid regarding a nominee’s weaknesses and instead offer only glowing adulations. This could undermine the very accuracy and value of HSBA’s recommendation.
Rather than incomplete by not sharing more information, the current HSBA process appropriately provides the Senate Judiciary Committee with the singular most important piece of relevant information: Whether the nominee is qualified for the judgeship. It is an appropriate complement to public testimony, including testimony by HSBA members at ratification hearings. The current process is both professional and in step with our local culture that rightfully believes it is inappropriate to unnecessarily speak poorly of another person.
In short, it is the best possible process for the nominee, the public and lawyers who represent their clients before the judiciary. It should not be changed.