Will Political Ties Secure a Federal Judge Appointment?
BY MALIA ZIMMERMAN - Should Congresswoman Mazie Hirono, (D-Hawaii) win the U.S. Senate election this November, she will help select Hawaii’s next federal judge.
If Hawaii’s most powerful Democrats get their way, that judicial candidate will be Andrew Winer, a tort lawyer and political strategist who is one of three finalists being considered to replace U.S. District Judge David Ezra.
Winer currently is a lead strategist for Hirono's U.S. Senate Campaign, but Hirono won’t comment on Winer’s application, or whether she will recuse herself should he officially be nominated.
One of Hawaii’s most politically connected attorneys, Winer directed President Barack Obama’s Hawaii election campaign in 2008 and subsequently took a position in the Obama administration, serving as Director of External Affairs in the National Oceanic and Atmospheric Administration. He resigned that position and returned to Hawaii earlier this year.
Before heading Obama’s upbeat campaign, an easy sell in Obama’s childhood home state, he was a key operative in campaigns against both Democrats and Republicans.
In 2006, as the campaign manager for U.S. Senator Daniel Akaka, D-Hawaii, he openly attacked then Congressman Ed Case, D-Hawaii, who was running against Akaka in the Democratic Primary, in his commentary series in the Daily Kos.
Case's campaign issued a statement about Winer and Winer's partner, William Meheula, after Meheula sent an email to Kamehameha Schools graduates attacking Case's stance on native Hawaiian issues. Case's campaign referred to the email as a "distortion" of his record and "political dirt."
Case and Winer are again on opposite sides in 2012 as Winer was named Hirono's senior advisor for her U.S. Senate challenge against Case.
In 2004, Winer chaired Honolulu City Council Member Duke Bainum’s campaign for Honolulu Mayor. Bainum, a Democrat, lost to Democrat Mufi Hannemann, but not before both sides were accused of record dirty campaigning.
In 2002, Winer’s main focus was on ousting Republicans from the Hawaii legislature, particularly those on Oahu’s windward side. As the director of the Democratic Party of Hawaii’s Coordinated Campaign, he oversaw the distribution of mailers targeting state House and Senate Republican incumbents and candidates, which were often timed so there was no chance for the Republicans to respond.
In just one campaign cycle, Winer in his role as the coordinated campaign chair, knocked out several of the 19-member House GOP Caucus.
Rep. Cynthia Thielen, a Republican in office for more than two decades, was a target of the 2002 negative campaign fliers produced on Winer’s watch. The flier accused Thielen, a Kailua Representative, of “putting drug and insurance companies ahead of Hawaii’s families.” The flier noted three Hawaii bills that were supposed to help Hawaii’s residents and seemed to claim Thielen voted against them. She had not voted against two of them. Thielen said the flier outright lied about her record, and when she confronted a Democratic Party leader, she promised to look into it and get back to Thielen but never did. The Democratic Party mailer asked voters to support the Democratic candidate, Avis Jervis.
Thielen said many Republicans on the Windward side of Oahu were targets of Winer and his Coordinated Campaign efforts that year.
Senator Bob Hogue (R-Kaneohe, Kailua) was one of them. An ominous looking mailer showing Hogue in a grainy black and white photo holding a sign that party officials manipulated to read: “Where is Bob Hogue?” - claimed Hogue “voted against our children’s future.”
The Hogue attack piece read: “When it came time to stand with Hawaii’s children, Bob Hogue said no. Obviously he does not believe our children’s future is a top priority.” The flier also accused Hogue of siding with drug companies essentially because he was paid off by their campaign donations, and as a result, he stood against Hawaii’s families - claims Hogue said then were false and a distortion of his record.
The mailer also accused Hogue of siding with big oil over consumers because he opposed Hawaii’s 2005 gas cap legislation (the implementation of legislation was soon ended after it failed to lower gas prices and in fact increased prices and caused shortages). The mailer asked voters to support Pono Chong. Chong did not beat Hogue, but he is now a state representative.
Rep. Bertha Leong, a schoolteacher and principal who was targeted by Winer’s mailer, lost her seat. The “hit piece” - as she called it - claimed she voted against a bill that would allegedly combat ICE trafficking. But Leong, who was named Mother of the Year in 1999 by the United Chinese Society of Hawaii and has since passed away, had actually voted to fund a campaign to stop ICE trafficking. In a letter mailed to constituents, Leong said she was “proud” to vote for the funding, and “dismayed” that her opponent’s political party would “stoop to an outright falsehood.”
She wrote: “You know me. I have lived in Aina Haina for 35 years, taught in our schools for 25 years, and represented our area in the legislature to the best of my ability for 6 years. Would I vote to weaken your protection against criminals on ICE, criminals selling ICE to our youth? I assure you I wouldn’t and I didn’t.”
“ICE” mailers also targeted Reps. Brian Blundell, Corrine Ching and Guy Ontai, claiming they voted against $14.7 million in funding to fight Hawaii’s ICE trafficking, when they had in fact supported the bill.
Ching was also accused of voting “against smaller class sizes, new text books and repairing schools,” when she in fact voted for the bill to fund these measures.
The Democrats’ coordinated campaign also successfully targeted Rep. David Pendleton with negative tactics. David’s wife Noemi – once a member of the state school board - wrote a letter to constituents in response to the 2002 mailer.
“My husband David has been the target of vicious attack advertisements and hit pieces sent out by the Democrats in support of Pono Chong. My husband runs a clean campaign. Unfortunately, Pono must think running a clean campaign means allowing the Democratic Party to do his dirty campaigning for him.”
The mailers just kept coming. Some Republicans were targeted as many as 8 and 9 times by various fliers that often outright distorted their voting record, saying they had voted one way when they had in fact voted the other way.
In some cases, Republican candidates who were never even elected to public office were accused of voting for various legislation they could have never had the chance to vote on.
Rep. Mark Jernigan was ousted after Republicans say a series of mailers falsely attacked his attendance record and claimed “Mark Jernigan does not care about us. Let’s fire Mark Jernigan.”
Republican Party Chair Brennon Morioka held a press conference that year to refute “attacks” on Reps. Brian Blundell, Corrine Ching, Bertha Leong and Guy Ontai, and to “address false charges against them,” but Hawaii Reporter was the only media to cover the GOP event.
Former Republican Party Chairman Sam Aiona remembers the way the Republican Party candidates were attacked that year, and was surprised Winer was nominated for a judgeship because of his partisan past. "It would be troubling if someone as political as him were named as a federal judge," Aiona said.
Another former Hawaii Republican Party Chairman, Willes Lee, said he is not surprised by the Democrats political payback scheme. "In allowing such an overt political operator a place on the bench, Winer would perpetuate Hawaii's old boy Democratic politics in the judicial system. If the U.S. Senate consents to Winer's appointment, it will emphasize all that is wrong with the judicial selection process," Lee said.
Former State Senator Fred Hemmings, (R-Kailua-Waimanalo-Hawaii Kai), said: “Andy may be well intentioned, though he has been a very hard hitting partisan operative. That combined with very little judicial experience may be a concern to the U. S. Senate if he is nominated.”
In addition to his political experience, Winer has served as the director and treasurer of the Hawaii Bar Association and as a member of the Hawaii Relations Board Arbitrations Panel.
The other two candidates for the judgeship nominated in addition to Winer are not involved in politics.
Derrick Watson heads the Civil Division in the U.S. Attorney’s Office in Hawaii, and Milton Yasunaga is a private attorney with the Cades Schutte law firm. Both have sterling reputations and educational backgrounds and are well respected among their peers. Both graduated from of Harvard University at the top of their class for their undergraduate and law degrees.
Watson, a graduate from Kamehameha Schools, also served as an Assistant United States Attorney in Hawaii and Northern California, and was a partner and special counsel for Farella Braun + Martel LLP in California and an associate attorney with Landels, Ripley & Diamond in California.
Yasunaga, who specializes in Commercial and Real Estate Litigation, Construction Law and Litigation, Creditors' Rights and Bankruptcy, Insurance Defense and Professional Liability and Intellectual Property, also has a degree from Oxford University in England where he was a Rhodes Scholar.
The FBI must clear the final candidate via a background check, and then the White House must submit the name of one of the nominee to the Senate Judiciary Committee.
Lawyers and judges interviewed by Hawaii Reporter suspect U.S. Senator Daniel Inouye, D-Hawaii, and Winer's other powerful political allies will help push his nomination through, but they question whether Republicans in the Senate would support him considering his controversial political background.
Whoever is confirmed will be a federal judge until he chooses to take senior status, and the only way he can be removed is if he is impeached.
Inouye, whose own unofficial commission helped screen applications and select the final three candidates, would not comment on the nominations or his choice for the position.
None of the three candidates have returned calls to Hawaii Reporter.
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