BY ROBERT H. THOMAS –Last week, Governor Linda Lingle made the appointment, and barring a horrifying scandal emerging, Mark Recktenwald is a going to be deemed “qualified” by the Hawaii State Bar Association (HSBA), and after a veritable love-fest, the Senate will consent.

His appointment comes one week after the same Senate, in a display of raw political power, shot down the Governor’s first appointment to the position, Intermediate Court of Appeals Judge Katherine Leonard.

Is Justice Recktenwald qualified to be the Chief Justice? Certainly. Indeed, he is highly qualified (even though that rating no longer is used), despite recently authoring an opinion for a 4-1 court that fundamentally rewrote Hawaii’s land use laws, but that lacked analysis and was thinly reasoned. (Cf. Justice Acoba’s concurring and dissenting opinion.) But as we noted earlier, one blown call should not an appointment kill nor a career make. Very good judges can occasionally write very bad opinions.

Was Judge Leonard also highly qualified? Again, certainly. However, it is highly unlikely that we will witness the same whisper campaign waged against Justice Recktenwald that was waged successfully against Judge Leonard. The knives sharpened in the dark and bared only behind the cover of the HSBA’s confidential ratings process will remain sheathed for Justice Recktenwald.

Why is that so, when, as a former cabinet official in the Lingle Administration, and stints as a law clerk for a Republican federal judge, as a federal prosecutor, and in one law firm founded by Republican Governor Quinn and another which represents management and employers in labor disputes, one might think that his judicial philosophy would lean more right than left, at least when compared to Judge Leonard who was, by all accounts, apolitical during her career in private practice? Also, at 54 he has the ability to serve as CJ for 16 years, spanning the terms of at least two governors. Objectively speaking, the overwhelmingly Democrat Senate would seem to have as much, or more, to dislike about a Recktenwald CJ-ship than a Leonard one.

It’s because the takedown of Judge Leonard was never about her qualifications or lack thereof, it was only about whether Governor Lingle had an opportunity to fill three seats on the court. Having now most likely achieved its goal of preventing the governor from doing so, the Senate will no longer obstruct her choice of Chief Justice. With little time for the Judicial Selection Commission to receive applications to fill the seat about to be vacated by Justice Recktenwald and to submit a list of names to the governor and the appoint/confirm process to be completed before Lingle leaves office, it is likely the next governor — who most are betting will be a Democrat — will get to make the choice.

And whether it is Neil Abercrombie or Mufi Hanneman, they will owe their ability to fill that seat to Senate President and Congressional candidate Colleen Hanabusa, who presently controls the Senate, and previously stacked the JSC. Although she publicly professed there is time: “Hanabusa said there is a good chance Lingle can [appoint someone to fill Recktenwald’s seat] if the commission submits the names from a list of candidates given to the governor last year when Recktenwald was chosen for the high court,” according to the Star Advertiser, we’ll believe it when we see it, especially when all the Judicial Selection Committee has to do to insure the next governor makes the choice is not expedite the process.

So why didn’t Governor Lingle just appoint Justice Recktenwald as Chief Justice in the first place instead of the relatively unknown Judge Leonard, given that he was considered a “shoo-in?” Again, it was about the ability to fill three seats on the court.

First, it was critical for the governor to get Recktenwald on the court in some capacity (see above about his background), rather than chance that his appointment as Chief Justice would be be held up were she to wait (see above about Judicial Selection Committee stacking). Thus, rather than run the risk of him not on the court at all, he was appointed to the first opening last May to the seat vacated when Justice Levinson retired. Next, with Justice Recktenwald safely on the court, the governor could then make the play for the third seat by appointing ICA Judge Leonard to the CJ spot when it opened up.

Appointing Recktenwald as CJ was less important that filling three seats, and Leonard, it would have appeared, was a good bet because she is highly qualified, and would appeal to certain “first” constituencies (first woman Chief Justice, first University of Hawaii law school graduate to serve on the court, etc.). If the play was successful, the governor would have filled three seats, including a long-term Chief.

Here’s what we learned from this:
• As long as HSBA’s rating system remains anonymous and unsubstantiated, it will remain irrelevant, except as a way to whitewash a political hatchet job.
• “Administrative experience” – not necessary for the job. Raised only by those ignorant of the job requirements and who have no idea about what they are talking, or as a code word for other issues. But, you say, Justice Recktenwald was head of a state agency and his resume shows he can handle running the state Judiciary, a qualification Judge Leonard’s resume lacks. Big deal. Chief Justice Moon lacked administrative experience. SCOTUS Chief Justice Roberts lacked administrative experience. They’ve done just fine.
• An appointee’s “qualifications” are a relative thing, depending on what the end game is.
• In Justice Recktenwald, we’re getting a very good Chief. We would have probably gotten an equally good Chief with Katherine Leonard too, but politics intervened to insure we’ll never know.

Robert H. Thomas is a land use and appellate lawyer based in Honolulu, Hawaii; Email: rhthawaiilawyer.com

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