Experience, diversity concerns raised on appeals court nominee

Daniel Gluck’s nomination to Hawaii’s Intermediate Court of Appeals has raised questions about his lack of experience before Hawaii’s high courts compared to other candidates, along with concerns about diversifying the appeals panel, which is considered a possible pathway to the Hawaii Supreme Court.

Gluck previously served as legal director of the ACLU of Hawaii and is currently executive director/general counsel for the state Ethics Commission. His nomination to the Intermediate Court of Appeals by Gov. David Ige is expected to be reviewed by the Senate Judiciary Committee at 11 a.m. Tuesday.

Then the full Senate is scheduled to convene at 10 a.m. Wednesday, followed by a separate decision- making meeting of the Judiciary Committee at 10:30 a.m. Final Senate votes are expected at 11 a.m. Thursday.

State Sen. Joy San Buenaventura, a criminal defense attorney, is not on the Judiciary Committee but plans to sit in during Gluck’s hearing before the Judiciary Committee to ask pointed questions — before voting against his nomi­- nation when it goes to the Senate floor.

“I’m speaking as a person who does the work, and my concern is his lack of experience doing trial work,” Buenaventura said. “Unless something happens, I think, yeah, I’ve pretty much made up my mind, especially when the slate has more (potential) justices that represent women and people of color. I don’t see why we should pick him.”

Buenaventura has represented clients before the Intermediate Court of Appeals who claimed they had ineffective counsel. Mistakes get made “in the rough and tumble of trial work,” she said. But there are no firm rules of what constitutes ineffective counsel and it takes an appellate judge with extensive trial experience to know the difference, Buenaventura said.

Among the ramifications for a ruling that a lawyer provided ineffective counsel is that the lawyer is automatically referred to the Hawaii Bar Association, “which means your license is on the line,” Buenaventura said.

Gluck did not immediately respond to a request for comment.

On Wednesday, members of the House Native Hawaiian Caucus sent a letter to Ige expressing concerns about Gluck.

“We acknowledge that at present, there are no native Hawaiian, Filipino, Pacific Islander, or African American judges at the Supreme Court or the ICA,” according to the letter. “It has been over 20 years since a native Hawaiian has been appointed to serve on the Hawai‘i Supreme Court and nearly 30 years since a native Hawaiian has been appointed to serve on the ICA.”

State Sen. Karl Rhoads, chairman of the Senate Judiciary Committee, called the six-seat Inter- mediate Court of Appeals Hawaii’s “workhorse court” that typically handles a full docket since clients and defendants do not have an automatic right to appeal to the Hawaii Supreme Court.

In June, the Judicial Selection Commission submitted a list of six names to Ige to replace Associate Judge Derrick H.M. Chan, who retired in October.

Ige interviewed all six candidates and nominated Gluck, whose other experience includes clerking for Chief Judge J. Michael Sea- bright of Honolulu’s U.S. District Court and James E. Duffy Jr. of the Hawaii Supreme Court; working at the U.S. Department of Justice in Washington, D.C.; Gay and Lesbian Advocates and Defenders in Boston; the U.S. Attorney’s Office in Honolulu and the AmeriCorps National Civilian Community Corps in Charleston, S.C.

“We’re going through the normal process,” Rhoads said. “The idea that Gov. Ige thought Daniel Gluck the best candidate — that does carry some weight. But it’s still the Senate’s decision whether to confirm him.”

With a total of eight cases before the Intermediate Court of Appeals and Supreme Court, Gluck by far has the least amount of experience of the six names submitted to Ige, according to online court records.

By comparison, Sonja McCullen and Taryn Gifford — whose names also were submitted for consideration — have handled 311 and 176 cases, respectively.

Troy Andrade is an assistant professor at the University of Hawaii’s William S. Richardson School of Law and director of the Ulu Lehua Scholars Program, which works to get law students from under-represented and under-served communities into the legal profession.

Andrade is less concerned with Gluck’s legal experience before Hawaii’s high courts and more concerned with ensuring greater gender and ethnic diversity on both panels.

Hawaii’s next governor is likely to replace three Supreme Court justices because of age limits, and the Intermediate Court of Appeals could be a stepping stone to the high bench.

“In this time of racial reckoning across the United States, we all need to be cognizant that representation really does matter,” Andrade said. “Right now there are no Native Hawaiians or Filipinos or Pacific Islanders on the appellate courts. If we have a more representative Judiciary, that builds confidence in our judicial system. … We have to be sure the governor is aware of these issues, as well as all future gubernatorial candidates.”

State Sen. Jarrett Keohokalole, vice chairman of the Senate Judiciary Committee and Senate majority floor leader, called Gluck “a good man. He has an impressive pedigree. Is that enough for a seat with this much influence and power? I have some concerns.”

Keohokalole called the appeals court Hawaii’s “gatekeeper” court that deals with a wide range of issues, including claims of ineffective counsel and cases that involve constitutional rights, crime, environmental law “and major Native Hawaiian cases.”

“It’s our job on the Judiciary Committee to do a thorough review of the nomination,” Keohokalole said. “I am not aware of any hard benchmarks or minimum qualifications. We look at the individual’s record and determine whether they are qualified to do the job they are nominated to do. That’s our job.”