Monday, August 16, 2010


A tale of political intrigue and strategy around Chief Justice appointment process

by Larry Geller

(Update: See comments to this post for reaction to the article I cited here)

According to today’s post on, Mark Recktenwald will be Hawaii’s next chief justice.

The article is very provocative when describing what came down on Judge Katherine Leonard:

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.

The article is very worth reading—it’s a tale of political intrigue and strategy. By the time I reached the end, I no longer knew what to think of the judicial selection process.

Check out the earlier article on the same blog for more on Recktenwald.


Metastes sour grapes by the pro-development “property rights are sacrosanct” Robert Thomas over the Ala Loop Homeowners decision. Rather than list why those who claim the need for administrative experience “have no idea about what they are talking (sic)” he links to right wing commentator Bob Jones’ similar baseless “political motivation” claims.

It’s as if he never read the duties you listed Larry. Don’t think twice, it’s alright.

I also don't see why you're giving such/any credence to the conclusory assertions of InverseCondemnation.

First, even if Lingle had gotten (or still gets) the chance to appoint three justices to the HSC, look at the first of those: Jim Duffy. Sure, she might have appointed him but there really was no one else from whom to choose on that list and he could not have been more politically opposite to her -- before or since -- than a Democratic appointment. That one appointment destroys any inference that, by appointing a majority of the Court, Lingle would somehow have given it her ideological imprint. Indeed, with Recktenwald's recent land use decision, she may end up disavowing both him and Duffy in the long run.

Second, why buy that dumping Leonard was somehow a ghastly hatchet job and that Recktenwald is just as qualified, but is only getting the position because of the likely HSBA "qualified" rating? By one measure, both are equally un/qualified. Imagine the hubris of both when they applied -- neither with any prior judicial experience of any kind -- to replace the retiring James Burns as Chief Judge of the ICA, the workhorse of Hawaii's appellate courts. He got it, she didn't. Now he has some administrative and HSC experience under his belt; she has neither. Why blame the rejection entirely on the HSBA rating? You noted how disappointing the Star-Advertiser editorial was afterwards; I agree, it made no mention of the testimony of attorney Eric Seitz or retired (and first female circuit court) judge Marie Milks. It wasn't just the rating and experience DOES matter; otherwise, why have an advise and consent process? Why not just have the Governor select one of the six found "qualified" by the Judicial Selection Commission and be done with it?

Third, what about the really outrageous remarks by Colleen Hanabusa to the S-A's Ken Kobayashi in Saturday's paper? Altho' she observed Senate tradition and deferred to the Judiciary Committee to make an assessment before giving her opinion on the Leonard nomination, she virtually anointed Recktenwald as the next CJ and cut Brian Taniguchi off at the knees in the process. He was left to tell the TV news on Sunday that a hearing would be held and that he would reserve judgment, blah, blah, blah. Isn't it ironic that the last time Hanabusa prognosticated on the outcome of a bill pending in that committee (civil unions in '09), it blew up in her face? Maybe she intended that? Maybe she intends that here. Her disrespect of the Senate's internal process and of her committee chair far more smacks of political intrigue than any of InverseCondemnation's sour grapes.



Fourth, I hope someone will hold Recktenwald's feet to the fire over something that really matters -- his judicial philosophy. If Lingle has placed any stamp on the Judiciary it has been a tendency to appoint former prosecutors, something which -- to reluctantly give her credit -- we perhaps needed given her predecessor's proclivity to appoint public defenders and criminal defense attorneys. The problem is, 'tho, that the Republican and prosecutor bench isn't too deep in the brains department (can anyone say Randy Lee?). The other is that the ones with brains have tended to come from a federal prosecutor background, Recktenwald and Craig Nakamura being the prime examples. So, you have two former federal prosecutors driving the development of Hawaii jurisprudence (Nakamura is ICA Chief Judge, Recktenwald held that position and may, or probably will become CJ) with a tendency to "federalize" state jurisprudence and to ignore the Hawaii Constitution and cases interpreting it. Case in point is State v. Hinton,, in which an ICA opinion authored by then Chief ICA Judge Recktenwald was reversed by the HSC because it disregarded prevailing Hawaii case law in favor of contrary federal law, a violation of the long-standing rule of stare decisis that is designed to prevent disarray in the law and uncertainty for trial courts, prosecution and defense (see fn 8 @ page 25). Curiously, this decision was rendered three weeks after his confirmation hearing in the Judiciary Committee and one week after Recktenwald's confirmation by the full Senate.

It's time to ask some REAL questions of the nominee and not just conduct a dog and pony show of sycophants, disgruntled lawyers/judges, and inscrutable HSBA ratings. If the Judiciary Committee does that, it will have done it's job, regardless of the outcome. The question is: does it have the political will after the Leonard mashup and now that, according to Hanabusa, it's all over but the shouting?

I don't know where to give credence, I thought readers of this blog would benefit from an alternative viewpoint.

Thanks very much for your comments -- I'll highlight them in the main article since many readers don't look at comments. And I guess I need to look up "stare decis."

Well now, c'mon, you DID give credence to InverseCondemnation. You called the post "very provocative," "very worth reading," and "a tale of political intrigue and strategy" that caused you to rethink your undersatanding of the judicial selection process. I certainly support presenting alternative viewpoints but not giving them credence if they don't support their conclusions, and the IC post -- to me -- didn't even pass the sniff test.

And, sorry for the Latin, legal-ese. The cited opinion used it and it comes up quite a bit in federal confirmation hearings -- especially for Supreme Court positions. Conservatives afraid that judicial activists will overturn established case law to suit their perceived agendas insist on commitments from nominees to support stare decisis, "to stand by and adhere to decisions and not disturb what is settled." Similarly, liberals hoping to ensure that, for example, a nominee won't vote to overturn Roe v. Wade want a nominee that is equally committed to the principle.

If Recktenwald felt no compunction about effectively disregarding Hawaii Supreme Court decisions when he was an ICA judge, what regard -- if any -- will he have for that precedent once he is CJ of that court? Perhaps this was the kindest inference to be drawn from Clayton Hee's inartful remarks in opposition to Leonard. In other words, that Leonard would not have respected the traditional Hawaiian gathering and other rights that have become part of Hawaii constitutional jurisprudence but that are totally foreign to federal (read "American") notions of property law.

Ned, thanks again for your comment.

I did think that the inversecondemnation article was provocative, but I don't agree or disagree with it. From my writing on this you'll see that it doesn't bother me that the Bar Association recommendation was anonymous, and I went to great lengths to demonstrate the administrative responsibilities of the CJ job which the writer dismisses as a factor. I think I might have been the first to point that out, but no matter.

While I'm not about to send readers off to right-wing diatribes, if there is some interesting and related point of view out there I do suggest clicking over and having a look.

Let me say that your analysis has been enlightening as well. Personally, I am not a fan of Mark Recktenwald for a number of reasons, mostly related to his tenure at DCCA. I did not follow him, as you did, and so your comments have been particularly valuable.


I did modify the original post to suggest reading the comments, since not everyone does, as a result of your series.

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Requiring those Captcha codes at least temporarily, in the hopes that it quells the flood of comment spam I've been receiving.

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