Katherine Leonard is the one who’s seeking to become the state’s top judge, but on Tuesday it seemed that the Hawaii State Bar Association was under as much scrutiny as the nominee.

That the association’s 20-member board found Leonard “unqualified” without providing any explanation has raised as many questions as her nomination itself. Its process is now on trial. Why so last-minute? Why no vote results? And why no rationale?

Of course the secrecy is hardly isolated to the bar association. Some of the same questions could be asked of the Judicial Selection Commission that whittled the list of applicants down to six from which Gov. Linda Lingle tapped Leonard to be the nominee.

The Hawaii Constitution and state laws and rules mandate confidentiality and restrict the commission’s communications to the governor to a simple alphabetized list and biographical information — in other words, no voting results and no rationale.

But the focus was firmly on the bar association early in the Senate Judiciary Committee’s confirmation hearing Tuesday. The bar’s terse one-page written statement — faxed to the committee at about 3 p.m. Monday, an hour before the deadline, and included as Page 8 of 182 pages of testimony — offered effectively zero insight into the decision.

“Taking into consideration all of the information presented by and about the nominee and an interview with the nominee, the vote of the Board of Directors of the Hawaii State Bar Association found Katherine G. Leonard to be unqualified for the position of Chief Justice, Supreme Court, State of Hawaii,” the four-paragraph testimony concluded.

In its written testimony, the bar association said it used a modified version of the American Bar Association Guidelines for Reviewing Qualifications of Candidates for State Judicial Office. Those guidelines measure integrity; legal knowledge and ability; professional experience; judicial temperament; diligence; health; financial responsibility; and public service. Before submitting its testimony Monday, the bar put out an announcement [pdf] about its general procedure for assessing judicial nominees.

It’s not immediately clear how heavily the Senate Judiciary Committee — and then the full Senate — will weigh the input from the organization that represents more than 4,000 licensed attorneys across the state. In a nation where “trust me” isn’t much of an argument, the bar is asking lawmakers to take the word of a select few for Leonard’s shortcomings. The opposition is one thing, but to make that claim without any substantiation rubs many the wrong way. It would never fly for the politicians who now must make the decision on Leonard’s nomination.

Lingle wasn’t going to wait to find out the effect of the opposition, panning the bar and calling the “unqualified” ratings of Leonard and First Circuit Court nominee Faauuga Tootoo “outrageous” in a Monday evening press release.

“The State Bar Association’s review process was unfair, flawed, and conducted under a veil of secrecy, with no accountability to the public. The HSBA has refused to state its reasons for its ratings,” Lingle said in the release. “It is impossible to know whether there is political, gender or ethnic bias on the part of the HSBA, since they refuse to state their reasons. I hope the Senate will see there is no validity to their ratings.”

Hawaii Public Defender John Tonaki also played the gender card in the Judiciary Committee hearing Tuesday, saying rejections without explanations have long been used to perpetuate the “glass ceiling” preventing women from rising to the top rung of society. Some past bar association presidents also testified in favor of Leonard.

Hawaii State Bar Association vs. American Bar Association

Attorney General Mark Bennett called the bar’s process unfair and contrasted the Hawaii State Bar Association’s practices against those of the American Bar Association.

The American Bar Association’s 15-member Standing Committee on the Federal Judiciary does not give consideration to comments from anonymous sources, according to the committee’s published “What it is and how it works” [pdf] report. Those who wish to have their comments on a prospective nominee considered must agree to the disclosure of their identity, though only to committee members and not to the public at large or the nominee. Bennett said the Hawaii bar board’s subcommittee accepts anonymous input.

The national bar’s procedures differ from the Hawaii association’s in other ways. The ABA still uses a well qualified-qualified-not qualified scale while the HSBA in the years since Leonard was confirmed to the Intermediate Court of Appeals in 2007 eliminated highly qualified, leaving just qualified and unqualified.

The ABA makes clear if a vote was unanimous, if a substantial majority of more than 10 carried the day or if a simple majority narrowly prevailed. In its ratings of all judicial nominees [pdf] from the 111th Congress, the ABA also makes public which rating the minority voted for. Supreme Court Justice Sonia Sotomayor earned a unanimous well-qualified rating in 2009; Elena Kagan, whose nomination debate reached the U.S. Senate Tuesday, also earned a unanimous “WQ” rating from the ABA, albeit with one abstention.

But the biggest difference, Bennett said, is that the ABA provides both the U.S. Senate and the nominee a detailed written explanation when it issues a rating of not qualified.1 In a phone interview with Civil Beat, Bennett said “basic fundamental fairness” requires that the bar explain its rationale so that members both of the bar and the public can understand how the decision was made.

“How is it possible … to evaluate the rationale used by the bar committee when they don’t tell us their reasons?” Bennett asked the Judiciary Committee. “Any process in which any committee votes in secret … (and) the reasons aren’t made known isn’t a fair process.”

Asked about the Hawaii State Bar Association’s position, Leonard said she met with the board on Monday morning and was informed of their decision Monday afternoon. Responding to questions from Republican Sen. Sam Slom, Leonard said “they asked about administrative skills and background.”

“They didn’t ask me about any of my cases. Not a single question,” she said. “I think they listened, although it was hard to tell how open they were or how far along they were in their thinking.”

Hawaii State Bar Association vs. Judicial Selection Commission

HSBA President Hugh Jones — who reports to Bennett in his day job as a deputy attorney general — said the decision was made “free of any invidious factors” and with “no animus to the nominee or her family or the senate as the confirming authority.” he said the interview took about two hours Monday morning, after which a robust discussion on Leonard’s nomination raged for another two hours.

He called it “one of the most difficult decisions a board member can make” and said the matter was taken very seriously. He said the board’s alleged “flip-flop” — it supported Leonard’s nomination for Intermediate Court of Appeals judge in 2007 — was a mischaracterization because Leonard now seeks a different position. And while he resisted the Judiciary Committee’s questions about how the “unqualified” rating was reached, he said the board weighed the requirements of the higher job title in its deliberations.

The bar association’s board consists of 10 men and 10 women of various ethnic backgrounds, all elected by the 4,667 members of the bar, Jones said. He rejected the idea that the rating was issued because the bar association does not want a woman in the chief justice position. And, he said, the review process offers confidentiality because attorneys who criticize the nominee might fear reprisal if they end up appearing before her if she is confirmed to the state’s high court.

He also compared the bar association’s anonymity and confidentiality practices to those of the Judicial Selection Commission.

The nine-member Judicial Selection Commission was created by Article VI, Section 4 of the Hawaii State Constitution. The commission recruits, interviews, investigates, evaluates and eventually selects judicial applicants, giving the governor a list of potential nominees for most seats on the bench.

The commission’s rules [pdf] lay out the criteria for selection quite similar to the bar association’s: integrity and moral courage; legal ability and experience; intelligence and wisdom; compassion and fairness; diligence and decisiveness; and judicial temperament.

The rules also mandate confidentiality for all commission deliberations and proceedings. Even after the commission finishes its work, it is not allowed to provide to the governor the rationale for its decision or how the body voted. In fact, rules dictate that the only information that can be transmitted via hand delivery is an alphabetical list of the names and a factual summary of the nominees’ backgrounds based on the original application. The governor can also consult with the commission on request.

Judicial Selection Commission Chair Sheri Sakamoto said Tuesday that she personally delivered the name list to Lingle this year. The executive summary of the various applications included biographical information like date of birth, work history, year law degree was obtained and year the nominee passed the bar exam, she said.

Lingle spokesman Russell Pang said Tuesday that the list fits on one piece of paper, plus the biographical information. Asked if he could provide those summaries to Civil Beat to show the limits on what input the commission can provide to the governor, Pang said that was not possible because confidential information would need to first be redacted. A Freedom Of Information Act request [pdf] was sent to the Office of the Governor Tuesday afternoon.

Bennett told Civil Beat the comparison between the bar and the Judicial Selection Commission was a poor one because the latter does not say an applicant is unqualified, does not announce its decision publicly, and gives judges a reason if they won’t be retained.

DISCUSSION Should the Hawaii State Bar Association explain its rating of Leonard as “unqualified”? Join the conversation.

  1. In its Frequently Asked Questions [pdf], the ABA says it has found just 33 judges unqualified of more than 2,000 nominated since 1960. But there are untold others who were never nominated after unfavorable ratings, which the ABA has sent to presidents — except for George W. Bush — prior to nomination. Bush declined to share his potential nominees with the bar association before sending them to the Senate.

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