Hawaii Passes on Chance of Female Chief Justice

(WOMENSENEWS)–When an all-male state Senate committee earlier this month rejected Hawaii’s first female nominee for chief justice because she didn’t have administrative experience or a "judicial temperament," many lawyers, male and female alike, were quick to call foul.

"Even the appearance that there is a glass ceiling in any profession in Hawaii is thoroughly repugnant," Honolulu attorney Joe Fadrowsky told the panel.

The heavily Democratic Senate, mired in a partisan battle with Republican Gov. Linda Lingle, ultimately followed the committee’s Aug. 5 recommendation, the same day the U.S. Senate confirmed Elena Kagan to serve as the third sitting female justice on the U.S. Supreme Court. The following day, the full Hawaii Senate voted 14-8 to reject Lingle’s choice, Intermediate Court of Appeals Judge Katherine Leonard.

Lingle, the state’s first female governor, won’t get another chance to pick a female chief justice. She’s confined to a list of nominees provided by the Judicial Selection Commission and the remaining candidates are men.

Two weeks later, state Public Defender John Tonaki, who along with the Acting Honolulu Prosecuting Attorney Douglas Chin testified in favor of Leonard’s confirmation, was still disturbed about the failure to confirm Leonard. In a phone interview, he said that judicial temperament and administrative experience never came up as factors in the confirmation of the two prior chief justices and called the vote a "double standard."

"I would assert that the use of such vague criteria has traditionally been used in the construction of the proverbial ‘glass ceiling’ to keep qualified female candidates from high positions in government and corporations," he said.

Same-Sex Unions Lie Ahead

Hawaii’s highest court is likely to grapple with same-sex civil unions, following Lingle’s veto of a bill legalizing them earlier this year. It’s not known how Leonard would have ruled on such an issue; she’s been careful to keep her opinions close to the vest.

But her judicial record to date shows a deliberative rather than an activist judge who leans heavily on the law and constitution. In prior opinions, she’s come down on both sides of a criminal’s obligation to pay restitution to victims, opined in favor of absent fathers and said minors must knowingly and voluntarily waive their rights to testify.

Female judges are certainly nothing new.

Women constitute 31 percent of all sitting justices on states’ highest courts and 20 of the 53 highest state courts have a female chief justice, according to the nonprofit National Center for State Courts, based in Williamsburg, Va.

Lingle’s nomination came a month after fellow Republican Gov. Arnold Schwarzenegger nominated Tani Cantil-Sakauye, also an appellate judge, to become California’s second female chief justice. Cantil-Sakauye faces confirmation by a state commission and would then appear on the Nov. 2 ballot for voter approval. Both judicial candidates are moderate, leaning Republican. Hawaii’s judges never go to ballot, but retention votes are held by the Judicial Selection Commission.

Despite these nominations, only one woman serves on the Hawaii Supreme Court. Paula A. Nakayama became the first woman on the court in 26 years when she was appointed in 1993.

Leonard, 50, was educated at the University of Hawaii William S. Richardson School of Law. She was editor in chief of the Law Review, law clerk at both the Hawaii First Circuit Court and the Hawaii Supreme Court and has more than 15 years as associate and partner at one of the state’s oldest and largest law firms. Most recently, she has served 2 1/2 years on the bench as an appellate judge. She’s active in the Boy Scouts of America and Hawaii Access to Justice Commission.

‘Respectful and Nice’

"I believe that I’ve been respectful and nice," Leonard told the panel when asked about her temperament. "Sometimes you disagree. I think I’ve disagreed respectfully. I think that I work hard to build consensus; I think I work hard to listen to the input of other people. But sometime you don’t always agree and you have to as a judge, you have to follow your conscience and the rule of law and not always go with the other person."

Lingle called the Senate vote "the height of hypocrisy," as that same body last year sent her a resolution calling on her to appoint more women to the bench.

"It’s extremely sad that someone of Judge Leonard’s stature and legal expertise became a victim of bias that had no merit or basis," Lingle said in a statement. "It’s also very telling that not one woman senator supported Judge Leonard’s confirmation, despite being so impassioned about getting more women on the bench."

Among Leonard’s most vocal opponents was the 4,667-member Hawaii State Bar Association. President Hugh Jones said Leonard was deemed unsuitable by a 10-man, 10-woman board.

"Applicants for judicial office are never told the reasons that they do not make the list of nominees," Jones told the Judiciary Committee, adding that he’s also forbidden by the bar association’s rule and past practice to divulge the organized bar’s reservations to the committee.

That didn’t satisfy some of the most vocal critics of the Senate’s action.

"As for expressed concerns about Judge Leonard’s ‘judicial temperament,’ I hope that Judge Leonard is not being subjected to gender bias or held to a standard that is different from that applied to a male nominee," Honolulu attorney Rhonda Griswold, a partner at Cades Schutte, told the Senate panel. "To the extent Judge Leonard might have been regarded as assertive or tough in her litigation practice, those traits are generally viewed as positive attributes when applied to a male candidate and should be viewed positively in a female candidate as well."

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Nancy Cook Lauer is an award-winning government reporter based in Hawaii.