Judge Kate Leonard at Senate JGO Hearing on August 3.
Ability to lead: What does that really mean? Well, if you’re going to look at an individual and see if they have the ability to lead, you look at what their past experience has been, people that they have worked with, people that, in fact, they have led. All of the people that have worked directly with Katherine Leonard—in a supervisory position, a position of equality, or with her as their boss—everyone, without exception, came forward and spoke about her abilities, her leadership, her temperament, her concern, compassion, and care for those that she worked with and who worked for her. Now, we can talk about the one retired Circuit Court judge who opposed her, and five individuals, or we can talk about the more than 100 individuals who stepped forward, including people that knew her intimately from the Intermediate Court of Appeals, from the State Supreme Court, from her private practice. And certainly, everyone in every position should be given weight, but if we are truly talking about equality, then those people that came forward and know her best should at least be given the same equality as those few that opposed her and the Bar Association.
It is not my purpose today to rail against the Hawai‘i State Bar Association. I made a number of points during the session and when I had an opportunity to question the president of the Bar Association, Mr. Jones, but I will reiterate a few important points because they are important, and because as much as I hate to disagree with the Chairman of my Judiciary Committee, when he said earlier that everyone knows—everyone knows—the process of the Bar Association, I respectfully disagree with him. People that came to the hearing that listened to the statements were shocked, including experienced attorneys and jurists. They were shocked because the very basic foundation of American jurisprudence is that you have the ability to face your accusers, and this nominee does not have that ability. Instead, we get innuendo, we get cowardly inferences, and I, like Senator Hemmings, agree that congratulations to Attorney Seitz, to Circuit Judge (retired) Milks, and those that came forward for whatever reasons. That’s important. But what I call ‘outrageous’ and ‘shameful’ is how a group of 20 out of 5,000 can make a decision that an individual is not qualified—especially after reading their criteria, which are very important and which include certain things such as integrity and character and respect and experience—not to let us know what the reason for that is, or reasons.
Nobody’s talking about anonymity. We don’t care who said it; we want to know what the arguments are. Even the U.S. Senate, in discussing a nominee and looking to the American Bar Association for their recommendation, gets full dossiers, full explanations—why we think the person is qualified or not qualified, or areas of concern. And that’s fair.
This process is not fair, and it was said earlier this morning. It’s not me saying it or my colleague Senator Hemmings saying it. It’s the current chief justice saying it. It’s the current attorney general saying it. It’s several of the leading attorneys and jurists in the community saying it. It’s the past presidents of the Bar Association saying it. But they don’t get it. They’ve had seven or more years to look at their internal policies and to be transparent, and basically they’ve thumbed their nose at all of these distinguished people, as well as you and me.
But here we are. We’ve come down to the final inning, the final out. This is it. There’ll be no running. There’ll be no hiding. By the way, lest I forget, Madam President, I do request a Roll Call vote. (The Chair so ordered.) We have the power—what a tremendous amount of power given to 25 individuals, 22 of whom are here today. It may be a very close vote. It may be a vote decided by one or two people, but it should be decided in favor of the nominee because as is been said over and over and over again by so many different people in the community, she is eminently qualified. That is the first and the last consideration that we should know about.
Now, there was a hearing by the Bar Association that lasted, by the Bar Association’s own time, two hours. They talked to her. It is my understanding, not being a member of the Bar Association and not being present for the interview, that not one of her cases was discussed. Everything seemed to surround this idea of leadership and administrative ability. I said yesterday, ‘We’re not hiring an administrative secretary. We’re hiring the highest law enforcement official of our state, someone that everyone will look to for the operations and the fair application of the law.’ There will be administrative assistants to do the administrative work, as the last four chief justices have done themselves. They don’t micromanage. They don’t do those things themselves. They attend to the law, which is the most important thing. Can we point to any of the four preceding CJs as having more leadership or administrative experience than this nominee? If you want to do it fairly, no, you can’t. No, you can’t.
Can we fault the Governor for appointing a woman and surprising, let’s face it, almost all of us in her pick? But it was a good choice. She explained her reasons, as she always does, in detail. I don’t know whether she listened to the Senate resolution or not, but look at the women that you’ve already seen this morning that are now on the bench or on a higher level on the bench. And the community listened as well. But isn’t it odd she selected a woman eminently qualified, and now people question her abilities, and ‘what if’ and ‘what will she do’ and all of that?
Now, it’s fine that we have our personal interests, questions, concerns, and even prejudices as individual members of a Senate committee or of the Senate as a whole. That’s fine. But we should throw them out and look to the testimony, and look to the people and the things that they say because that’s more important. We are, in effect, the representatives of the public. As was said, the public does not have direct input on the selection of judges or the chief justice. We do. We’ve got the power, and with that power comes the responsibility; and it is our responsibility to put personal and political points of view aside.
Now, some of you know me as the lovable old man of the Senate. I’ve been here a while. I doubt that some of my colleagues would say that I have administrative or leadership abilities, but I know I do, and I’ve done it. But I was here during the last administration of a different political party, and if you look at my voting record, my voting record is about 98 percent in favor of all of those appointees, including one of the most controversial appointees who was sitting here earlier. I looked at those people, and personally, I wouldn’t want to be in the same room with some of them; and politically, we were poles apart. But they were qualified, and they were also the choice of the chief executive; and there should be respect given to that chief executive, especially after we have set up this system where it’s not just his or her choice by themselves. They have to select from a group of nominees that are sent to them, and all of those nominees are qualified or they wouldn’t be sent there.
Now, this same Legislature applauded this same Governor with her first appointment to the state Supreme Court, who happened to be a man that several previous Democrat administrations, locally and nationally, had tried to get appointment for and failed, and yet she appointed that man first, knowing full well what his political considerations were. She looked for the best qualified; she had no hesitation in doing that, and we all applauded her. We said, ‘Way to go, Gov!’ And now this same Gov makes an appointment; now we’re saying, ‘Well, we want women, but this is not the right woman. And all of us men on the Committee, we’ll decide about ‘the woman’.’ And all the people in the Bar Association—God bless them, there’s ten men and ten women—we don’t know the reasons for their unqualified rating. We don’t know their vote because everything is secret. And again, it’s not a question of anonymity because you don’t care who says what as long as you have a basis for that. Otherwise, there is a cloud.
And I’ve got to tell you, Madam President, when people come before the Senate and they say, ‘Well, there are judges and there are attorneys that are afraid of intimidation.’ They’re afraid of this woman? They’re afraid? Attorneys in this community, who sometimes say the most unbelievable things—they’re afraid of intimidation? Just as long as they get their billable hours, I don’t think they’re afraid of anything.
Come on! Let’s be serious. There are forces in effect here that are bigger than this Senate Committee, bigger than this Senate, and outside this building because this nominee represents a break from what I described yesterday as ‘the provincialism of the plantation era’. She is absolutely independent. I made this statement yesterday and it found its way into the committee report: I don’t know whether she’s a Republican or a Democrat. I’ve never asked her; I don’t care and it doesn’t matter. We’re not electing a Republican or Democrat chief justice. We are nominating the best qualified person. That person is sitting in this room right now; that’s Kate Leonard.
Now, there were also comments by individuals and others, ‘Well, these other guys, all five of them, they’re just as qualified or more qualified.’ Well, how do we know that? Because we didn’t hear anything from the Bar Association; and as we know, we really don’t know if a person is qualified until we hear from the Bar Association. Unless, of course, they leak it before the hearing, as they did with two of the justices who they found unqualified this time. Leaked. Everybody knew about it before we even walked into the hearing. That’s not a way to run a professional association, and that certainly is not a way to choose a chief justice.
Is this important? Yes! Should there be total scrutiny? Yes! Should every question be answered? Yes! The nominee answered every question. Those that gave testimony answered every question and illuminated us with additional things that only they knew because they worked with her. People on our Committee said, ‘I don’t know her. I don’t know who she is, but yet I have opinions.’ And they did not give equal weight to those people that said, ‘We do know her! We’ve known her 10 years, 15 years, 20 years or longer. We’ve worked with her. We’ve seen her decisions.’
And by the way, wasn’t it interesting? In our hearing, which was long for the Senate—except Senate President, who holds the record for the eight-hour unrestricted hearing without a bladder break—wasn’t it interesting that during that time, no one on the Committee asked specifically about her jurisprudence and her cases, all of which were available and known. It took a former chair of the Senate Judiciary Committee, who just wandered in looking for some entertainment, to bring up those cases and to ask those questions. And then later on, we were told, ‘Ah! No more time for questions. Oh! That’s it!” And there were people sitting in our room that did not get an opportunity to give their testimony live. Oh, sure, it was put up online later after the hearing. What was the rush? We had 30 days; were we in a rush? Did we have to cut off discussion and more information? Of course, it didn’t cut off some of the anonymous e-mails that have been received after the hearing and some of the scurrilous attacks that were made on this nominee. Now, I have faith in my colleagues on the Committee and in this body that they will disregard those things, but that’s happened. In fact, there are some people that have a profession of attacking individuals. They don’t do it on the issues; they attack the individual.
We brought up all kinds of issues, but they were really not at the crux of a chief justice. You want to know where that chief justice stands on the issues. Well, she got into a discussion about the rule of law and about some specific cases, and she asked him, whether my colleague was fully satisfied or not. Maybe he’ll speak today about that; maybe he wasn’t. But she answered them. And see, that’s the difference. I have a difference of opinion with my colleagues on various issues, and as Senator Hemmings said, we certainly are known as the ‘independent lone eagles’ because we listen. We work hard. We ask questions; and in the end, it may change our position on something we assumed because you can’t assume. You have to listen, and you have to understand where the testimony is coming from, either for or against, what it’s about. We had excellent opportunity to do that, although, as I said, we could’ve had more time to do it, but I don’t think more time would’ve done it. I don’t think any reasonable, rational person walking in and listening to the debate and listening to the facts and the questions would say, ‘Oh gee, we can’t do it. We can’t confirm her because there still may be other questions.’
I raised the issue of whether or not we’re inventing standards that we never held any other judicial nominee to in the past, and I will stand by that because if you look back over past hearings, if you’ve attended them as I have, if you read transcripts, you would find out that all of the important questions were asked, and they weren’t answered.
This idea of transparency is very important because people are not comfortable with their government now, locally as well as nationally, and there have been criticisms of our Judiciary. They have not been solved. The nominee is a problem solver. She has demonstrated she can bring different parties together. The idea is not to impose her own philosophy, whatever that is, but to reach an amicable solution that is fair to all people concerned. She would not be a ‘corporate’ CJ. She would not be a ‘native Hawaiian only’ CJ. She would not be a ‘special interests’ CJ. She would be the learned chief justice of Hawai‘i’s Supreme Court. She earned the respect of the judicial community.
I said yesterday to a point that was raised also that there may be other people out there as qualified, or, in some people’s minds, more qualified. I don’t think so, but in some people’s minds, ‘We don’t want someone that has to learn and grow on the job.’ I do! I do. In business, I want somebody that’s going to learn and grow, not be static. But she’s already got the tools. She’s already got the talent. She certainly has the learned ability to approach any problem, any complexity now. But I don’t want somebody to say, ‘That’s it, man. I’ve done it; I’ve learned it all. Nothing more to go.’
And some people are concerned because she’s too young. I used to get that a lot; I don’t get it anymore. They’re concerned because she’s so young. My God! She could be the CJ for as long as 19 years. Wow! Let’s see; how long as Dan Inouye been U.S. Senator…? I can’t remember.
So, we have this double standard. On one side, it’s a good selection by the Governor because it’s one of our guys. On the other side, it’s not a good selection because we don’t know if it’s ‘our guy’—oh, it’s not even ‘our guy’, it’s our ‘gal’, and we want more gals but not this gal. I’m confused about that, and you should be, too. And you should search the corners of your mind because as Senator Hemmings said, it is the honor of Hawai‘i and it is your personal honor.
The Senate has always operated in a transparent manner, unlike the HSBA or others. With all of our beauty spots and all of our warts, we’re right there; and you can come down and you can talk to us, and you can attend the hearings and you can testify or you can send in testimony. We’re accessible to you, as we should be. You pay for everything we do. You elect us, or de-elect us.
There was an article in this morning’s paper that Senator Hemmings referred to from Mr. Borreca, and he had one sentence in there about election of judges. What a lousy idea; everybody agrees. Well, I don’t totally agree, and certainly my good friend—the Yankee fan, the attorney general—we disagree. I support the election of attorney general for the reason you heard today: The public doesn’t have any input. And I would be very happy to have the constitutional question available to people: Do they want to elect judges? Now this justice here, like previous nominees, has had to go door-to-door, basically campaigning, visiting with us, visiting with organizations and all that. Basically, they’re campaigning—‘Vote for me’—instead of just being a good, qualified justice or chief justice. I don’t think they should have to do that. I personally find it demeaning. But that’s what we do right now, and yet, after all of that, it is told and retold to us, the public doesn’t have any input. We do. Again, I remind you: We are the representatives of the public. And the public has told us overwhelmingly that they want this woman as chief justice, that we’re ready for a woman, that we’re ready for an independent, we’re ready for a graduate of Richardson School of Law, and oh yes, we’re even ready for somebody that wasn’t born here. How wonderful, how far we’ve come—but have we? Your vote will determine that today.
I think that those people that said that they don’t know her, I think that’s unfortunate. She’s made every opportunity to be available for you to get to know her if you didn’t, but I think it’s really difficult to say, ‘I don’t know her, haven’t read anything about her, but I have these concerns and they’re serious enough that I’m going to vote no.’ That’s not rational behavior; that’s not rational thinking. The concerns—absolutely. Questions? Absolutely. But not, ‘I just don’t have a good feeling about this.’
So, I would ask my colleagues again to look at the quality of the supporters who came forward, many of whom waited hours and hours and hours just to say a word about the person that they respected and that they knew. They had no questions with temperament, no questions with leadership, no questions with administrative ability, and they were there to tell you that; and if you listened, that should have a great deal of ‘gravitas’, I think was the word that was used over and over again. I think that it is extremely important that we show to the community that we are representative, that we do listen because most people don’t come down to the Legislature. Most people don’t tune into ‘Ōlelo to watch the hearings, hour after hour after hour. Those that do are surprised; they’re surprised at what goes on down here. More people should come down and watch because it’s like what Bismarck said: ‘If you like sausage or laws, don’t inquire as to how either are made.’ If more people watched, if more people took advantage of this, we would be a better state.
This Senate has the power today to make history, but more importantly, to do justice; to make sure that the qualities that this nominee possesses—just like the qualities that the judge that we confirmed a little while ago possesses—are not besmirched by nameless, faceless, cowardly actions. This chief justice will be a great chief justice. She’s come at a time when there are many problems facing the State—the executive branch, the legislative branch, and the Judiciary. She knows that problems about the budget. She knows the problems about the 1,800 employees, but more importantly than knowing about them, she brings a fresh pair of eyes and an ability and a youthfulness and an energy to solve the problems. And I have no doubt, from her past experience, that she will call on people, not asking them what their political or philosophical vein is, but calling on people to help solve these problems because it is in our best interest to have the best Judiciary that we can have. We can have that today with the confirmation of Katherine Leonard as our next chief justice. To do any less would be the real injustice in the State of Hawai‘i. Thank you, Madam President.
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