Sunday, August 08, 2010

 

Editorial on Leonard nomination disappoints


by Larry Geller

Today’s Star-Advertiser editorial begins thusly:

The state Senate's rejection of Gov. Linda Lingle's nomination of Katherine Leonard to be chief justice of the Hawaii Supreme Court brought to light a flawed system of determining qualification that needs to be fixed. The rejection was based on a finding by the Hawaii State Bar Association that Leonard was not qualified, although no reason was given. The state bar should use a national model to shed light on reasons for such evaluations in the future.   [Star-Advertiser, State bar needs to explain basis for judicial evaluations, 8/8/2010]

Unfortunately, it seems the editors haven’t been paying attention. There may or may not be a problem with the Bar Association recommendation, but the editors’ claim that “The rejection was based on a finding by the Hawaii State Bar Association that Leonard was not qualified, although no reason was given” appears false.

For one thing, senators confirmed the appointment of District Court Judge Faauuga Tootoo to the Circuit Court with a 22-0 vote despite the same negative recommendation from the Bar Association.

Judge Leonard met with senators as part of the vetting process. Senators were also well aware of the administrative duties the job comes with. I listed up some based on the same information that legislators had but which the newspaper avoided covering.

The editors could also have checked with their columnist, Richard Borreca. He wrote, also on Sunday (snippet, please read the article for complete context):

Sources said Lingle was furious that [Mark] Recktenwald [associate justice of the Supreme Court] was not fighting for her position on the court and turned out to be a centrist, not an advocate for less judicial interpretation.

Besides being the point of Lingle's court-reforming spear, Leonard would have been one of the most powerful state Supreme Court chief justices in the country.

The CJ assigns judges to court, decides whether they are going to civil or criminal court, works on the court calendar, appoints District Court judges from a list drawn up by the Judicial Selection Commission and decides who will write the majority opinions.   [Star-Advertiser, Lingle stumbles in effort to remake state Judiciary, 8/8/2010]

I don’t know if senators were aware of the Governor’s fury that Borreca describes, but if so, that alone would taint her nominee. Lingle has made plenty of appointments to Hawaii’s courts and has already left her mark, yet instead of respect for the law, her disdain for its refusal to bend to her power-play politics should make anyone double-think the purpose of her nominations.

Was Leonard chosen to provide service to the people of Hawaii or to further Lingle’s political agenda? If Borreca is asking it, surely some of the senators might have had a similar question.

Senators, through interviewing the candidate, listening to testimony, and via their own discussion and debate, familiarized themselves with Judge Leonard’s capabilities. The Star-Advertiser editors, on the other hand, admit they don’t understand the issues:

The result was a Senate debate based on conjecture and innuendo regarding Leonard's leadership or administrative abilities, whatever that might mean.

Borreca works on the same floor, I’m guessing, so they might just have asked him to explain what it meant and why the chief justice needs to be able to demonstrate leadership and administrative abilities.

Finally, although many of the Senate floor speeches were excellent and on-point, I would like to quote extensively from the remarks of Senator Clayton Hee. He was kind enough to send me a transcript. It’s clear that Senator Hee spent considerable time in formulating his decision, which in this case was to vote against confirmation. Senator Baker also spoke with great clarity and perception, as did others, on both sides of the vote.

What the heck, I’m not comfortable snipping this. Senator Hee developed his position carefully and thoughtfully. A snip would destroy that.

Please take some time to read Sen. Hee’s speech in its entirety. If you skim, at least check out his conclusions near the end.

Madame President I respectfully rise to speak in opposition to the nomination of Katherine Leonard as Chief Justice of the Hawaii Supreme Court.

Before proceeding I wish to thank and acknowledge Governor Lingle for the selection of Judge Leonard and agree with the Governor that the nominee’s years of service, achievements, her scholarly record as a law student, lawyer and jurist are accomplishments exceedingly worthy of her consideration and qualifications as the next Chief Justice.

I also wish to thank Judge Leonard for the discussion she and I had last evening regarding the concerns of native Hawaiians and her thoughts amplifying some of the statements she and I made during the public hearing on Wednesday.

Governor Lingle has indicated and the Judge Leonard has concurred that she would follow “the rule of law,” that she would not be an “activist judge” who would necessarily “make the law”. In addition, the nominee during testimony on more than one occasion praised with great admiration the work of the late Chief Justice William S. Richardson for his vision and achievements in a life fulfilled in service to his fellow citizens.

The nominee accurately testified that the rights of the native Hawaiians were “enshrined” in the Hawaii Constitution and she would vigorously support the efforts of native Hawaiians as the Chief Justice of the Hawaii Supreme Court. Respectfully and philosophically, that is not enough.

In a clumsy effort to engage Judge Leonard in a discussion on what she meant by her statements regarding native Hawaiians I asked the nominee about her thoughts on the Robinson v. McBride case in which the Richardson Court ruled that water was a public trust not to be owned by either party in the suit which sought to “own” the water over the other, but rather to be shared by everyone just in pre-contact Hawaii.. Specifically, I asserted that the Richardson Court went beyond the “rule of law” and that Chief Justice Richardson himself had stated many times over that he was “not concerned about the well heeled Robinson and McBride” but rather he was concerned about the “Hawaiian taro farmer downstream” as the basis of the court’s ruling. The question I clumsily posed to the nominee asked, “Was “he” meaning Richardson, wrong?” The nominee responded that she was not present to say he was wrong. I am not sure whether that response meant that Richardson was right. In retrospect, I should have asked the nominee if she believed the Richardson Court strictly followed the “rule of law”.

Chief Justice Richardson often told the story of when, as a curious youngster, he found himself peering over the hedges from the shore at a grand party going on inside the Royal Hawaiian Hotel at Waikiki. He reminded us that a worker of the hotel instructed him that he, Richardson, needed to watch the ongoing party from “in the water” as the beach was “private property”. He said he never forgot the humiliation as a young Hawaiian being told that the beach was private property which he said gave rise to the ruling by the Hawaii Supreme Court regarding the rights of access of all people that the beach up to (at the time) the high water mark belonged to the public.

During our discussion last evening Judge Leonard mentioned the “Kalipi”, a case involving customary and traditional rights of access for native Hawaiians saying that it is (now) within “the rule of law”. I agree. Respectfully, I assert and hold to the firm belief that such customary and traditional rights of access would not be established and could not be enforced but for the ruling by Hawaii Supreme Court as opposed to simply relying on the Hawaii Constitution, which by definition is a “broad purposeful document” intended to frame as opposed to implement or establish law.

At the national level I firmly believe that but for the ‘activism’ of the US Supreme Court schools may never have been desegregated as it is well known that the US Congress for many years could not overcome the opposition of those, primarily members who represented southern states who vigorously defended segregated schools through maneuvers and machinations of the rules of congressional procedures.

While some of my colleagues may disagree, I believe that following the strict “rule of law” does not work to level the playing field of justice for minorities, the disenfranchised, people of color and native indigenes.

I have been honored to serve in elected office for many years, more than a decade of which was with the Office of Hawaiian Affairs. Most of those years were spent in court over any number of issues on the rights of native Hawaiians. That was not by accident but rather based on a calculated strategy and the firm belief that justice for the people of the first nation of these islands regarding any rights of governance would be found in the judiciary, not the legislature. With all due respect, the strategy was based on the willingness of the courts including the Hawaii Supreme Court to view native Hawaiians in the context of the constitution that enshrines those rights and leaves the articulation to the courts to rule upon.

Judge Leonard has demonstrated a hardworking ability to diligently take on and complete her assignments as evidenced by the number of cases she has participated as a panel member of the Court.

It should be noted; however, that of the opinions she wrote as the primary author approximately 20% were reversed. Among the reasons stated by the Hawaii Supreme Court was that she interpreted the law “too narrowly”. It is in keeping with Judge Leonard’s philosophy of the “rule of law”. It is that philosophy that I respectfully disagree.

For the forgoing reasons I respectfully and regrettably will vote “no” on the confirmation of Judge Katherine Leonard as Chief Justice of the Hawaii Supreme Court.

Thank you Madame President.

Readers may agree or disagree with Senator Hee. I felt his extensive remarks illustrate the careful consideration that the Senate appears to have given to this nominee.

Senator Hee did not forward his remarks to me in support of any view I hold, he sent them simply because I asked for a copy.

Anyone can ask a legislator for a copy of their floor remarks. Reading them should put to rest the editors’ accusation that decisions were made based on conjecture or innuendo.


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Comments:

Those were well thought out remarks and am very relieved that Senator Hee is so capably on the job.

He saved many from future despair by helping to not let this nominee slip through.
 

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