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Mark Bennett, a former Hawaii attorney general, has been nominated by President Donald Trump to take the Hawaii seat on the U.S. 9th Circuit Court of Appeals.
Bennett served as attorney general under Gov. Linda Lingle, Hawaii’s last Republican governor, from 2003 until 2010.
Bennett’s selection won praise from Hawaii’s Democratic senators, Mazie Hirono and Brian Schatz, who are both fierce Trump critics. That indicates Bennett’s nomination may face a smooth path in the Senate.
Bennett is a director at the Honolulu firm of Starn O’Toole Marcus and Fisher, where he specializes in civil and appellate litigation, antitrust and government relations.
Bennett, who is in his mid-60s, declined to comment on his nomination.
But Hawaii’s two U.S. senators, both Democrats, welcomed the nomination from Trump.
Hirono serves on the Senate Judiciary Committee, which will consider Bennett’s nomination.
“Attorney General Bennett has extensive experience practicing law in the public and private sectors in Hawaii and at the federal level,” Hirono said in a press release. “Mark is a well-qualified nominee to serve on the Ninth Circuit.”
Schatz called Bennett a “highly competent, principled attorney.”
He said in a press release, “I am confident that he will be a fair, dispassionate jurist who will carefully follow the rule of law while reflecting Hawaii’s values.”
If confirmed, he would replace Richard Clifton of Hawaii, who was appointed by President George W. Bush. Clifton stepped down from his post at the end of 2016 and has been serving on senior status ever since. He was only the second judge to ever serve on the 9th Circuit from Hawaii since it became a state in 1959.
Some expected the Trump administration to hold firm on trying to appoint a hard-edged conservative to the 9th Circuit. The court has been lambasted by the right for years as one of the more liberal branches of the federal judiciary.
But Hawaii’s politically blue hue — not to mention a limited pool of lawyers — probably made finding that type of nominee difficult.
It’s also unlikely that liberal senators like Hirono and Schatz would have signed off on such a pick in the first place.
“The Trump administration would not submit someone’s name unless they had some conversation or some discussion with those who are important to this process, which includes our senators,” said Larry Okinaga, a Honolulu-based attorney who was instrumental in helping vet prior U.S. judges for former Sens. Dan Inouye and Dan Akaka.
“I don’t know if those conversations occurred, but the fact that our two senators seem to be backing the nomination indicates that they are having those discussions,” Okinaga said. “They themselves may want someone else with a different political perspective, but maybe it was something that was satisfactory to them.”
There’s a long-standing practice that federal judicial nominees must get sign-off from home state senators before getting a confirmation hearing in the Senate Judiciary Committee.
This process is marked by a pair of blue slips given to the senators. Each senator fills one out to give a nominee a thumbs up or down.
Although Hirono and Schatz have yet to turn over their blue slips for Bennett — they’re waiting, among other things, for the American Bar Association to issue an official rating — their positive statements seem to bode well for his future on the 9th Circuit.
Another former Hawaii attorney general has already thrown his support behind the nomination.
“I’ve known Mark for quite a long time and I think he’s an excellent choice,” said David Louie, who served as attorney general for four years while Neil Abercrombie was governor.
“He has good judicial temperament,” Louie said. “I’ve always thought he was very straight-forward. He’s more interested in basic fairness without the political overtones.”
Sometimes, his work for the Lingle administration pitted him against the governor’s own party in Washington, D.C.
For example, the administration lobbied heavily for the passage of the so-called Akaka Bill that sought federal recognition of Native Hawaiians. The measure was opposed by many Republicans who complained that it would establish a race-based government.
Bennett was also an attorney for Texaco during the administration of Democratic Gov. Ben Cayetano, who preceded Lingle in office. The Cayetano administration’s $2 billion antitrust lawsuit against Hawaii’s major oil companies was later settled.
Bennett was confirmed unanimously twice for the Hawaii attorney general position in a Senate controlled by Democrats.
While the Trump administration has had few legislative successes, it has been “among the most successful when it comes to appointing federal judges,” The Los Angeles Times reported Jan. 19.
The reason is that Trump’s party has a narrow majority in the Senate.
Still, the president has singled out the 9th Circuit for his ire after it struck down the temporary travel ban on immigrants from six majority-Muslim nations.
“Trump has derided the California-based court ever since its judges ruled against an earlier version of his travel ban in February,” USA Today reported in September. “He stepped up his criticism by calling for the circuit to be broken up after a federal district judge in California — who does not sit on the appeals court — temporarily blocked the president’s order cutting funds to sanctuary cities in April.”
A reporter for Vox wrote last month that the 9th Circuit “has long been stereotyped as a liberal outlier, prone to left-wing rulings that are frequently reversed by the Supreme Court on appeal.”
But, Dylan Matthews wrote, the court’s reputation “is somewhat undeserved. While the 9th Circuit has some of the nation’s most famous liberal jurists, it has more ideological diversity than its critics give it credit for, and it’s evolved considerably from the 1980s, when its reputation took shape.”
The 9th Circuit Court includes Hawaii, Arizona, California, Idaho, Oregon, Montana, Nevada and several U.S. territories. Court locations are in San Francisco, Portland, Seattle and Los Angeles.
The appeals court is by far the nation’s largest, covering states that have 20 percent of the nation’s population, “and its 29 full-time judges hear more than 12,000 appeals annually — nearly twice as many as any other appeals court,” according to USA Today.
Bennett was formerly a partner at the Honolulu law firm McCorriston Miller Mukai MacKinnon and an assistant U.S. attorney for the District of Hawaii.
According to his biography on the Starn O’Toole Marcus and Fisher website, Bennett “twice successfully argued before the Supreme Court of the United States, in Hawaii v. Office of Hawaiian Affairs, and Lingle v. Chevron.”
He received his law degree from Cornell Law School (magna cum laude) and served on the Board of Editors of the Law Review. Bennett was a law clerk for Chief Judge Samuel P. King of the U.S. District Court for the District of Hawaii.
Benett has also taught as an adjunct professor at the William S. Richardson School of Law, University of Hawaii Manoa.