Well, what do you know. The Hawaii Senate Judiciary Committee voted 4-1 against recommending Intermediate Court of Appeals Judge Katherine Leonard to the full Senate for confirmation as the next Chief Justice of the Hawaii Supreme Court (we live blogged the Judiciary Committee hearing). The full Senate will decide today whether to confirm or not confirm her appointment.
Earlier, we wrote about the factors that should be part of the evaluation, and summarized the best indicator of how she would be as Chief Justice, her opinions during her time as a Court of Appeals judge. We offer some final thoughts:
- Is she "qualified?" Plainly so. The Judicial Selection Commission's constitutional duty is to pass on to the governor only "qualified" applicants. By that definition, she is qualified. Even were that not the case, Judge Leonard has served more than two years as an ICA judge, and her opinions reveal a careful jurist, with no obvious political or policy bent. Her opinions are straightforward, reasoned well, and of a reasonable length. Her extensive experience in civil litigation is also a plus, since she will bring those experiences to the court.
- What about the Hawaii State Bar Association's "not qualified" rating? It is meaningless because it is unsubstantiated. Because of the HSBA's process for evaluation of judicial appointees is confidential, and the HSBA does not provide anything to back up a rating, there is no way for Senators or the public to evaluate the trustworthiness of the rating. Could it be based on factors other than the objective and politically neutral list of criteria the HSBA says it applies? For all we know, a dislike of how a Chief Justice Leonard might rule on particular issues may have factored in. Look at the list of Board members, and it's a valid question. Is the rating designed to insulate Senators from the potential political blowback of a no vote ("if her own peers say she is not qualified, who are we to say otherwise")? We hope the rating is based on valid reasons, but we just don't know, and HSBA isn't saying. The HSBA's response has been, in essence, "trust us, it's a valid process." It is correct that HSBA's "constitution" requires this process, but the HSBA constitution is not law. Like the Pirate's Law in Pirates of the Carribean, the HSBA's constitutional "requirements" are merely guidelines, and with nothing but a bare rating coming out of the process, the process itself makes the resulting rating virtually worthless, especially when viewed in light of the overwhelming support her peers and colleagues have shown.
- The fact that three prominent members of the Bar testified against her appointment demonstrates HSBA's concerns that nonconfidential comments will lead to retaliation are overblown. If nothing else, this may let us know whether fears of retaliation are well founded; if there is no retaliation, then maybe we have matured past the time when it was an overriding concern. Additionally, Chief Justice Moon suggested recently the HSBA process is flawed and should be overhauled (and may suffer from Constitutional infirmity since it is the function of the Judicial Selection Commission to determine whether appointees are "qualified," and cannot be usurped by the HSBA).
- "Judge Leonard is qualified to be an Associate Justice, just not Chief Justice." This is the "administrative experience" meme. As we wrote earlier, "other Justices have served as administrators, mostly in government. Is "lack of administrative experience" a code word for "hasn't served in government" meaning she chose a different path than "government lawyer?" Who knows....Besides, many others lacked obvious administrative experience prior to becoming Chief, and it didn't seem to hinder them."
- The real question is not whether Judge Leonard is "qualified," but whether she is acceptable to the Senate. That's a much different question of course, since it could be based on subjective criteria such as politics, and not on an illusion of objectivity. Objectively, Judge Leonard is qualified; indeed, she is highly qualified. Senators, however, may wish to vote against her for other reasons such as to deny Governor Lingle the opportunity to appoint three Justices, as is their prerogative. The Senate's role is to "consent" and Senators do not have to base their consent or nonconsent on objective criteria and are free to base a "no" on their prejudices, or even raw politics. But it would be nice to see some candor, and not the shibai that she is not qualified.