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WASHINGTON — Jill Otake, a federal prosecutor from Hawaii, appeared before the Senate Judiciary Committee on Wednesday as part of her confirmation to become a new U.S. District Court judge.
It was the definition of noncontroversial, even if it was the product of weeks of negotiations between Hawaii senators and the Trump administration.
Most of the senators’ questions were reserved for one of the other nominees at the same hearing, Joseph “Jody” Hunt, former chief of staff for U.S. Attorney General Jeff Sessions. President Donald Trump nominated Hunt in September to take over the Justice Department’s Civil Division.
Hunt worked for Sessions last year during some of the Justice Department’s most turbulent times and was involved in Sessions’ decision to recuse himself from the FBI investigation into Russian interference in the 2016 election. He was also purportedly in the room with Sessions in February 2017 when then-FBI Director James Comey told the attorney general that he didn’t want to be left alone with Trump.
So by any measure, the questioning of Otake was as soft as a Hawaii breeze.
One of her tougher questions came from Sen. Michael Lee, a Republican from Utah, who wanted to know how the prosecutor who spent much of her career in Washington state before moving home to Hawaii would handle noncriminal matters.
“How do you feel about transitioning into a docket that includes both civil and criminal matters?” Lee asked. “Does that worry you or do you look forward to that possibility?”
“Senator,” Otake responded, “I’ve always thought the most dangerous person in the room is the person who didn’t know what they don’t know. I’m aware of my need to get up to speed, but I’m very excited about that. Whenever attacking a brand new area of criminal law I’ve gone to the law, checked out the statutes, checked out the case law and relied on my training.”
Lee seemed satisfied.
“I think that’s exactly the right approach to take,” he said.
Otake, who was nominated by Trump in December, was praised by Hawaii Sens. Mazie Hirono and Brian Schatz during the hearing for her career as a criminal prosecutor.
Schatz pointed out the many cases Otake took on as an assistant U.S. attorney, including those involving corrupt prison guards, the attempted murder of a grand jury witness and his daughter, and a racketeering case involving one of Hawaii’s most notorious prison gangs — the USO Family.
“Ms. Otake has distinguished herself as a prosecutor through hard work, leadership and success in putting away criminals,” Schatz said. “As lead counsel she has taken 87 jury cases to trial and obtained guilty verdicts in several complex criminal matters. Her cases demonstrate an impressive legal mind and steadfast commitment to justice.”
Otake’s nomination is an example of bipartisanship, because the approval of Hawaii’s Democratic senators is a critical cog in the confirmation process.
There’s a long-standing practice in the Senate of the Judiciary chairperson not allowing a confirmation to take place until both of the nominee’s home state senators have returned a “blue slip” of approval.
Thickening partisan divides combined with a White House that has aimed to stack the courts with conservatives, however, means blue slips are no longer a guaranteed courtesy.
Hirono addressed this at the hearing, saying she was heartened that Otake and another federal District Court nominee up for consideration Wednesday — Kari Dooley of Connecticut — both received blue slips from their Democratic home state senators.
She noted that in Hawaii’s case it took several months of negotiations with White House Counsel Don McGahn and his staff to get a deal.
“This demonstrates that when there has been meaningful consultation between Congress and the White House it is possible for both sides to agree on qualified, nonideological nominees,” Hirono said.
“Our federal district courts have played a critical role in protecting our rights over the past year,” she said. “The legislative branch has a responsibility to make sure the nominees we confirm are both qualified and capable of making decisions based on the Constitution, the law and the facts.”
What makes Otake’s nomination all the more striking is that she was recommended for the judgeship in 2015 when Barack Obama was president.
At the time, Otake was one of three finalists chosen by a federal judicial selection panel made up of members picked by Hirono and Schatz. The other two candidates were David Louie, a former Hawaii attorney general, and Clare Connors, a private practice attorney who, like Otake, worked as a federal prosecutor.
Obama ultimately nominated Connors from the list, but she was never confirmed by the Republican-controlled Senate.
Harsh Voruganti, a lawyer from Arlington, Virginia, who runs The Vetting Room, a non-partisan legal blog that tracks the Trump administration’s judicial nominations, wrote that Otake’s nomination likely resulted from backroom dealmaking by Hawaii’s senators.
Voruganti said that the Trump administration’s decision to nominate Otake seems to be part of a “package deal” to get the state’s senators to sign off on the nomination of Mark Bennett, the president’s Republican-leaning pick for Hawaii’s seat on the 9th U.S. Circuit Court of Appeals.
Bennett is a former Hawaii attorney general who served under Republican Gov. Linda Lingle from 2003 to 2010.
Trump has also nominated Kenji Price, a former private practice attorney, federal prosecutor and U.S. Army Ranger, to take over as U.S. attorney for Hawaii. Price also served as the president of the Hawaii chapter of the Federalist Society.
Voruganti said horse trading is common when it comes to judicial nominations, particularly in Democrat-controlled states such as Hawaii.
If the Senate flips from Republican to Democrat — which looks like a long shot in 2018 — Voruganti said the Trump administration’s willingness to compromise could be helpful in the future.
“Senator Hirono and Sen. Schatz both have been very vocal about disagreements they have with the administration, and Sen. Hirono has been very vocal about shortcomings she’s seen with the nominees,” Voruganti said.
The presumed negotiations over Hawaii judicial nominees “shows that there’s a little bit of work being done underlying the rhetoric,” Voruganti said.
After the Wednesday hearing, Hirono described her negotiations with McGahn over the judicial nominees as “professional and straightforward.” She noted that none of the judgeship nominees at the hearing displayed an overt political agenda.
“They’re all very well-qualified and I believe that they will be judges who will be fair and follow the law,” Hirono said. “And I don’t think that they have a particular ideological ax to grind.”
The Judiciary Committee did not vote on Otake’s confirmation Wednesday. If it’s approved as expected, it would move on to the full Senate.
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