When Gov. David Ige makes his selection next month on who should fill a vacancy on the Intermediate Court of Appeals, the odds are good that it will be a man. Of the six finalists, only one is a woman.

Despite calls for more female lawyers to apply for judgeships, even from Ige himself, fewer women than men apply for the posts, and fewer make it onto the finalist lists submitted by the Judicial Selection CommissionThere were initially 12 applicants for the appellate judgeship, four of them women.

Today in Hawaii, 33 of 80 full-time judges are women. Last year, Ige urged more women to apply.

“The Judiciary must accurately reflect our community, and I want to encourage more women to apply for these positions,” the governor said then. “Ultimately, the judicial branch will better serve the people of this state when it truly mirrors our diversity.”

Hawaii State Supreme Court Associate Justice Sabrina McKenna questions attorney’s during oral arguments Civil Beat vs city. 1 june 2017. photograph by Cory Lum/Civil Beat
Sabrina McKenna is one of two women who serve on the five-member Hawaii Supreme Court. The other is Paula Nakayama. Cory Lum/Civil Beat

The Theories Vary

Those in Hawaii’s legal community, both male and female, have opinions about why women still make up less than half of Hawaii’s full-time judges.

Fair or not, women generally shoulder a greater child-rearing burden and a law career — especially one that might lead to a judicial appointment — imposes an ambitious schedule.

“I think that the pool you want to draw from in selecting judges is people who have litigation experience,” lawyer Paul Alston said, adding that only a fraction of the roughly 4,000 lawyers listed as active by the state bar actually argue cases in court regularly.

“It is a bad thing to take a lawyer who has never been a litigator and say now you’re going to to be a judge,” Alston said.

Appearing in court requires a flexible schedule and long hours. For women lawyers wanting to start a family, litigation can be a more challenging career route, he said.

Roseanne Goo, a trust and estate attorney, began a solo practice years ago in part to gain better control over her own schedule. She said plenty of women do succeed as lawyers, even on the litigation track.

“There isn’t any one particular reason” why Hawaii doesn’t have more full-time women judges, she said. “I think it’s pretty nuanced. In general, a woman who would apply is the kind of woman who recognizes the realities, and that is not a barrier for them.”

Goo said she knows more women are applying to the Judicial Selection Commission, but for whatever reason, are not making it to the finalist list that goes to the governor or, in the case of district and family court openings, to the chief justice of the Hawaii Supreme Court, Mark Recktenwald.

‘They Are Applying’

Hawaii is one of 36 states and the District of Columbia that use a commission to nominate judges. Hawaii’s commission is also the only one in the nation that is responsible for deciding whether to retain judges after their initial terms.

Lawyers interested in the higher court vacancies, those on the Intermediate Court of Appeals, the Supreme Court and Circuit Courts, must have 10 years experience in Hawaii before applying for the openings. Lawyers with five years of experience in Hawaii can apply for the district and family court openings.

After the commission reviews the applicants, it forwards its finalists to the governor, who selects high court judges, or to the chief justice.

“They are applying,” Goo said of women, but perhaps not in the numbers needed for more of them to make it past the first round.

Prior to Hawaii’s constitutional convention in 1978, judges were selected by the governor and approved by the state Senate. Convention delegates wanted a new way to choose judges.

“What they wanted to do was minimize the role of politics in the choice of judges,” said Lawrence Okinaga, who was on Hawaii’s first Judicial Selection Commission and helped craft the group’s rules.

Jackie Young, center, chairs the Judicial Selection Commission. She said more women are applying for District Court judgeships. Cory Lum/Civil Beat

Current commission chair Jackie Young said that the total number of women currently serving as judges obscures more recent trends that are beginning to emerge.

At the District Court level, the number of women applicants appears to be growing, Young said. On Friday, Wendy M. DeWeese, a former public defender, will be sworn in as a district judge on the Big Island.

Of the 33 Circuit Court judges, 23 are men and 10 are women. There are currently 19 men and 18 women serving as District Court judges.

“The District Court has had more (female) applicants than on the high court level,” Young said. And that field narrows when it comes to the higher courts because it requires more years of experience as a lawyer.

That’s a problem not just for the legal industry but in other corporate fields, even the military, Young said. Her hope is that with more women applying and winning appointments in the lower courts, a pipeline of more female candidates for the higher courts will emerge.

“I just encourage any woman who has the inclination to become a judge to apply and to stay the course,” Goo said. “Because if people are saying that they believe in parity and they are moving in that direction, then their time is now.”

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