BY MALIA ZIMMERMAN – Hawaii Democrats are hotly divided over whether Senate Judiciary Chair Brian Taniguchi, D-Manoa, should have recommended the confirmation of Katherine Leonard as chief justice of the Hawaii Supreme Court. She’d replace sitting Chief Justice Ronald Moon turns 70 in September and must retire.

Today, after heavy lobbying in Leonard’s favor by mainly Democrats, and minimal public opposition, Taniguchi recommended his 5-member Senate Judiciary committee vote against her, which they did by a vote of 3 to 1 and 1 with reservations.

But that was not before several women Democrats from the Hawaii Women Lawyers association met with Taniguchi in person this morning to ask him to support Leonard. “They cut me off at the knees,” Taniguchi says jokingly. The women, who have been lobbying for Leonard to become the first woman and the first graduate from the University of Hawaii Richardson School of Law to serve as chief justice, emphasized that they were not only lawyers, but “Democrats who vote.”

Despite pressure from within his own Party, and several dozen leaders in the community who came forward in testimony, through emails, phone calls and personal visits to support her confirmation, Taniguchi recommended against Leonard.

He says her lack of proven leadership and experience in the judiciary, were the two main factors. Women lawyers supporting Leonard say Taniguchi is holding Leonard to a higher standard than her male counterparts.

Leonard was nominated by the Judicial Selection Committee as one of 6 most suitable lawyers to be chief justice – she was the only woman on the list.

Republican Gov. Linda Lingle, R-HI, who has been criticized for appointing more men than women to the bench during her 8-year tenure, and was the target of a Senate resolution this year urging her to nominate more women jurists, countered criticism by nominating Leonard. She also nominated two women of three circuit court nominees and a woman district court nominee – all of whom were confirmed by the committee Thursday.

Taniguchi said after the hearing in response to a reporter that he believes all other candidates are “qualified” for the chief justice position, and essentially any of the 5 remaining on the list would be good choices.

Should the Senate majority vote against Leonard tomorrow in session, the governor would have to select another candidate from the list.

But Leonard is the only candidate with an extensive background that includes appellate experience, serving as a law partner in a major firm, and serving as editor-in-chief of her law review. The only difference between her and the other nominees, women lawyers point out, is that she is a woman.

Opposition from Hawaii State Bar Association, Three Attorneys, Hurt Her Credibility, Taniguchi Says, But He Wants More Transparency in the Bar Evaluation Process

Just four people opposed Leonard in testimony, including civil rights attorney Eric Seitz, who says he does not know Leonard personally, and retired Circuit Court Judge Marie Milks.

While Milks testimony was balanced out by the enthusiastic support from former associate state Supreme Court Justice Robert Klein, whom Leonard clerked for, Taniguchi admits that the Hawaii State Bar Association board of directors rating her “unqualified” influenced his decision.

For two decades, the Bar’s involvement in the judicial confirmation process has continued to be controversial, no more so than over this confirmation.

According to Board President Hugh Jones, there are 20 board members, 10 men and 10 women, charged with determining whether to rate a judicial candidate as qualified or not.

The board solicits comments from its 4,667 members, meets with the candidate, and then votes behind closed doors on the rating.

The controversy comes into play because the Board refuses to disclose reasons for the rating, the number of board members present, and the final vote, because Bar President Jones says lawyers are concerned about retaliation.

Advocates for Leonard and other judicial candidates opposed by the Bar say the entire court process is about “facing your accuser,” but the Bar lawyers hide behind their anonymity.

Taniguchi, who is an attorney, says although he is not going to take a leadership role in making the process more transparent within the Bar association, he believes the board should at a minimum disclose the final vote count and outline the reasons for the rating.

State Attorney General Mark Bennett has been a strong advocate for transparency. He, Gov. Linda Lingle, and Senate Judiciary Member Sam Slom, R-Hawaii Kai, who support Leonard, say the bar board’s behavior is “outrageous.”

Bennett told Senators in testimony that the American Bar Association explains their reasons to the U.S. Senate for any opposition to a federal judicial candidate, and the Hawaii Bar Association should follow that example.

Leonard: One of Hawaii’s Bright Minds

Fellow jurists and attorneys say Leonard has one of the brightest minds in the state, and that her community service and involvement with youth, is unusual and exemplary. She is active in a variety of community organizations. That includes playing a leadership role in the Boy Scouts, an activity she shares with her 13-year-old son, Ian.

Her blue-collar background and her past working experiences include waitressing; her love of orchids and botany along with the lure of the University of Hawaii Richardson School of Law, are what brought her to Hawaii more than 30 years ago.

People who know her in the community as well as in the judiciary, agree that she is the kind of person that goes the extra mile to complete a task or write a decision. She has brought experience from the private sector, corporate law, trust law, and litigation, and in an usual show of public solidarity, had the overwhelming support of both the prosecutorial and defense and public defender attorneys.

While perhaps not “warm and fuzzy,” her advocates say she is a no nonsense dedicated jurist, whose employees, law clerks and colleagues have all lauded her for uncompromising work ethic and her adherence to the rule of law.

As the governor points out, no one knows Leonard’s personal or political beliefs, because as she says, they are not relevant to fairly deciding the outcome of a judicial issue.

Behind the Scenes: “Old Boys” Rule?

What was the real reason behind Leonard being voted down Thursday by the Senate Judicial Committee?

Sen. Sam Slom, the only committee member to support her, pointed out that Leonard isn’t one of the “old boys” who have ruled the third branch of government with an iron fist for decades.

Despite what the Senate members said in their resolution earlier this year, he believes being a woman who was not born and raised in Hawaii, did play against Leonard.

In a passionate speech to his colleagues, Slom said: “… here are five men sitting here and none of us have ever walked in the shoes of a woman who is trying to climb the corporate ladder, let alone the public service and judiciary ladder, if we are going to err, and we are human, let us err on the side of giving Judge Leonard a fair chance.”

There are many serious problems in the judiciary, Slom says, and despite this, many fought to keep current chief justice beyond the statutory age limit. That includes Senate Judiciary Chair Taniguchi who twice attempted to change the constitution through a public vote to extend the retirement age for judges.

But Slom says a fresh pair of eyes, specifically Leonard’s, will help solve the problems, since she is known as a problem solver.

“Katherine Leonard has demonstrated her ability to work with people – all kinds of people. A great deal of weight should be given to people who worked with her or served with her. Limited minds have limited vision and don’t see what others can do. Judge Leonard is the right person at the right time, to lead us in the right direction.”

Slom says politics is getting in the way. “Right or wrong, many people believe that there is too much politics in the judiciary and that people do rule for certain individuals because of their standing in the community. If that is what you want, you will not get that with Judge Leonard. She has the capacity and ability to act fairly for all people concerned but she will follow the law. And I may be old fashioned, but I thought that is what we want in a judge.”

The Hawaii Women Lawyers also submitted a statement to the media:

“HWL has new perspectives on the state of the judiciary in Hawaii, how things get processed, what “qualities” are relevant, and who among us is “qualified” to lead the Hawai`i Supreme Court. It appears that the minimum requirements include “administrative experience” and the “ability to lead.” The million dollar question that remains is “how much” will be enough? HWL obviously continues to believe that Judge Leonard has these qualities and hopes that the majority of the full Senate will reach the same conclusion tomorrow.

“What may have surprised us the most is that several Democratic HWL board members found themselves actually in support of a Republican Governor’s judicial nominee, because we agree with her that Judge Leonard is “qualified” on the merits. We suspect other lawyers also found themselves in a strange, somewhat foreign, bipartisan territory.

“If she is confirmed, based on Judge Leonard’s available decisions, “her court” should be one that is fair, moderate, thorough and mindful of precedent. We emphasize very strongly, we found Judge Leonard eminently “qualified”, not because she is a woman, but because she is qualified on the merits.”

Leonard says she is spending the rest of the day speaking with Senators in hopes of providing enough information to gain their support during tomorrow’s 9 a.m. vote with the full Senate.

In a statement issued after the vote Thursday, Lingle said:

“Judge Leonard is eminently qualified, as evidenced by the overwhelming testimony and support from the legal community.

“Both the Honolulu Prosecutor’s Office and the State Public Defender’s Office – who take opposing sides in the courtroom – testified in her favor, saying she is fair.  That’s exactly the type of chief justice that should be on the bench – someone who both sides consider fair.

“Judge Leonard is an outstanding legal scholar and a true leader who will set the tone for jurisprudence in the state for the next decade.

“I remain confident that the full Senate will do the right thing and confirm Judge Leonard as the next Chief Justice of the Hawaii Supreme Court.”

Reach Malia Zimmerman, editor of Hawaii Reporter, at Malia@hawaiireporter.com

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