Hearings on Dan Gluck’s appointment to the Intermediate Court of Appeals last week renewed the debate over the diversity of Hawaii’s judiciary.
Men still far outnumber women in the courts, and Gov. David Ige’s judicial appointments have heavily favored men. Others point out that the pool of potential nominees is heavily skewed towards men, including the number of lawyers overall and those who apply to serve on the judiciary.
“There’s still a ways to go to appointing qualified women to fill judicial vacancies and bringing balance to the bench,” Nicole Altman, president of Hawaii Women Lawyers, said. The organization advocates for women in the legal profession.
Gluck was the lone white man on a list of candidates that included four women, one of whom is a judge.
His nomination drew rare, open opposition July 27 from attorneys and other individuals who raised concerns over Gluck’s qualifications compared to the female candidates. Many also broached the issues of gender balance in Hawaii courts and the racial makeup of government in general.
Those factors all came to a head July 29 when the Senate rejected Gluck’s appointment even after he asked the governor to withdraw his nomination. Gluck, the director of the state Ethics Commission and a staunch defender of civil rights in Hawaii, said in a statement shortly after the vote that “every one of us has an obligation to do more to right historic injustice.”
But there are no easy answers about how to accomplish that, particularly in regards to the composition of the courts and representation in the legal field.
Some have pointed to problems like child care access for women, which could be solved by providing better access and resources. Others have said there are more deeply rooted issues at play, such as implicit biases of those who interview and select judicial candidates.
The governor appoints judges to the state Supreme Court, the Intermediate Court of Appeals and the four circuit courts. The chief justice of the Hawaii Supreme Court makes appointments to the lower courts, including the district and family courts.
Since 2015, 72% of Ige’s court appointees have been men while just 28% have been women. In the same period, 60% of Chief Justice Recktenwald’s court appointees have been women, while about 39% have been men.
Ige actually appointed two men twice. He appointed Associate Justice Todd Eddins to the First Circuit Court in 2017 and elevated him to the Supreme Court last year. In 2017, Ige also picked his campaign manager, Keith Hiraoka, to take a seat on the circuit court before appointing him to a vacancy on the appeals court in 2018.
The governor must now select a new candidate for the ICA from a list sent by the Judicial Selection Commission, a nine-member panel that evaluates applicants for judicial vacancies.
“For each vacancy, I select the person I believe will best serve the community regardless of gender or ethnic background,” Ige said in a written statement in response to questions about his judicial selections.
Ige’s court picks tend to come from a mix of sitting judges in the lower courts and attorneys from the public and private sector.
A majority of Recktenwald’s judicial appointees come from the private sector.
Ronette Kawakami, an associate dean at the William S. Richardson School of Law and former chair of the Judicial Selection Commission, said that more private sector attorneys might be selected as a practical matter.
Public defenders and deputy prosecutors, who often deal with criminal matters, may need to recuse themselves if seated in a district court that often deals with criminal cases. Having a judge sit out cases would place a heavier burden on the other district court judges, Kawakami said.
Attorneys who want to become judges face lengthy application and interview processes. After applying, they must also clear the Judicial Selection Commission. The commission narrows applicants down to a list of finalists presented to the governor or chief justice.
One possible explanation for the skewed numbers is that men apply for judicial vacancies at far higher rates than women. Lists of finalists also tend to be mostly men.
Women accounted for just 13% of finalists sent to Ige for consideration. The governor has encouraged more women to apply for vacancies.
Kawakami, of the UH law school, also wants to see more women in judicial applicant pools.
"Women need to apply more," Kawakami said. "They need to think of themselves as someone worthy to be a judge."
While more women have been appointed judges in recent years, the numbers still don't reflect Hawaii's population, which is 50.1% male and 49.9% female. The gap in the judiciary is reflective of the gender gap among lawyers as a whole.
Men make up 62.9% of the 2,700 active lawyers in the state, according to the Hawaii State Bar Association. Women account for just 37%.
Marti Townsend, an attorney and director of the Sierra Club of Hawaii, said there's no good reason for such a gap.
"There's nothing inherent to the practice of law that somehow makes it less attractive to women," Townsend said. "The challenges that many women unfortunately face are the same challenges they face in all sorts of fields."
Across all courts, men outnumber women. Of the 75 full-time state judges working across all courts, 41 are men. Men outnumber women on the circuit courts, which handle criminal felony cases and conduct jury trials.
However, the split is more even in the district courts, which tend to handle lower-level cases. There are more women on district courts on Oahu and the Big Island.
Kawakami agrees that the challenges facing women in the legal field aren't unique to the profession. She points out that women tend to take on a greater share of housework and other family responsibilities. Others have said that leaves less time to participate in activities outside of work that interviewers like to see on resumes.
"You have to have someone that's really able to juggle everything, whereas a man doesn't have to," Kawakami said.
Women might also be scrutinized more than men during interview processes, or may decide not to try again after being passed over.
"You work super hard and you distinguish yourself, then somebody gets it and they're not as qualified as you. And they happen to be a man. Why would you apply next time?" she said.
A 2016 study by the American Constitutional Society found that Hawaii had one of the most diverse judiciaries in the nation.
Data from the state bar association would indicate that there are fewer white judges than a decade ago and more Hawaiian judges.
Of the 99 per diem and full-time judges in 2021, 21 are of Japanese ancestry, 20 are white, 16 are Hawaiian or part Hawaiian, two are from Korean backgrounds and six are Filipino-American, according to a report from the state bar association. There was only one Pacific Islander and six judges were listed as "other."
However, the bar association data comes with a caveat. Every year, some judges decline to answer a question asking for their race and ethnicity on their annual renewal. In 2021, a quarter of judges who are members of the association declined to answer that question.
Ige has overwhelmingly appointed white and Asian candidates to judicial vacancies, comprising about 71% of his appointments, according to written testimony from the Sierra Club and other organizations that commented on Gluck's appointment. Half of Recktenwald's appointments were white or Asian, while a quarter were Hawaiian.
Altman, president of Hawaii Women Lawyers, is looking forward to participating in a committee backed by the Legislature to examine how judges are selected.
"That committee will be taking a look at the overall processes and making recommendations, in part to create a more diversified bench," Altman said.
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