How To Evaluate The Leonard Nomination

by Robert Thomas www.InverseCondemnation.com  Link >>> to original 

To add to our earlier summary of the opinions authored or joined by Intermediate Court of Appeals Judge Katherine Leonard -- Governor Lingle's nominee as the next Chief Justice of the Hawaii Supreme Court -- we have a few thoughts on whether anything can be intuited about what her "judicial philosophy" might be (assuming that we can even discern a pattern), and how she might view the hot-button issues a Supreme Court under her leadership may be asked to consider. 

As Ian Lind notes, "Mainstream media haven't told us much about Chief Justice nominee's legal views" and "[t]he only thing I’ve seen about Leonard’s actual judicial performance and views was a review of Leonard’s decisions from the legal blog, Inversecondemnation.com." The only other coverage we've seen has been further references to our post by law blogger Charley Foster at Planet Kauai, and by alternative journos Hawaii Reporter and Hawaii Free Press. The only words we've heard from traditional media has been from the Star-Advertiser's Dave Shapiro, and then primarily via his Volcanic Ash blog.

The absence (so far) of deeper mainstream media interest has left us bloggers as the only game in town. A couple of the comments on Lind's posts have tried to flesh out more by noting Judge Leonard's private practice background and time in law school, and Shapiro reports on a single objection by a lawyer asserting she does not have the proper "temperament," lacks administrative experience, and has served "only two years" as an appellate judge, but these are all we have to date.

However, the lack of traditional reporting may not be the result of a dearth of interest or lazy journalism, it may be the absence of material. There is an obvious dynamic counseling members of the Bar from making anything but generic statements of support. As with any smaller jurisdiction (Hawaii has 3,500 actively licensed attorneys -- yes, we know 3,500 lawyers is a lot, but compare that figure to California, which has approximately 222,000 members), the very lawyers who might be looked to for the most insightful commentary -- those who have practiced in the Court of Appeals -- may already have cases on their way to the Supreme Court, or can expect to in the future. While one would never suggest that a judge might be influenced in his or her decision in a case by a lawyer's earlier comments on the judge's nomination, discretion may be the better part of valor when a reporter calls a lawyer looking for a sound bite.

If a lawyer wants to comment on Judge Leonard's qualifications, the opportunity is there without the need for attribution: soon after the nomination was announced, the Hawaii State Bar Association sent out an e-mail blast to its members asking for confidential comments. 

The people more likely to be willing to comment would be tenured law professors, since they have for the most part no clients to satisfy and have job safety. But Judge Leonard graduated from U.H. law school in 1991, and her lawprofs may not have distinct recollections, even if someone's behavior in law school nearly two decades ago is a valid predictor of whether they are qualified to serve as a judge today. Anyhow, the best indication of how her lawprofs regarded her would be her grades, and one would assume that her tenure as the editor-in-chief of the Law Review means she earned high marks. Law review membership is sought by those with an academic bent, who earn high grades, who understand the hard work that law practice entails, and who can express themselves well in writing. (Yes, I was on the Law Review.) And alas, back in our law school days, we didn't have cell phone cameras, Facebook, MySpace, Twitter, and blogs to insure that if we indulged in an additional beer or two at a Friday pau hana, it was permanently recorded for posterity. So no gold or dirt to mine there.

So, are we going to get much more in the way of candid commentary or insider information? Likely not. We will likely see some political posturing especially as the Senate hearing draws near, since if this nomination is killed in the Senate, Governor Lingle would have to scramble to nominate another before she leaves office, and the failure of the Leonard nomination would possibly throw the selection to the next governor.

To fill that gap, here are our thoughts on how to view this nomination. [Disclosure: I do not know Judge Leonard, and have never appeared before her.] One caution: a judge's background may have certain indicators, but even these cannot be taken as wholly accurate bellwethers of how a judge will approach judging generally, or especially how she or he might rule in particular cases. 

Let's take the most prominent items on her resume one-by-one:

She was in private practice at a large Honolulu-based firm - That is no indicator of her being judicially "conservative," as might be thought. Of recent Hawaii Justices, Chief Justice Moon, and Associate Justices Nakayama, Duffy, Levinson, and Recktenwald spent significant time in private practice [Disclosure: Justice Levinson was in private practice in my firm; he was one of my first mentors], and they decided cases involving same sex marriage, Hawaiian rights, and the environment in ways that could hardly be viewed as "conservative."

• She was Editor-in-Chief of the Law Review while in law school - As noted above, a good indicator she is intellectual, detailed, and hard working. I am not sure how she obtained the position, but if the process was similar to my law review tenure a few years earlier, the editor-in-chief was elected by a vote of the law review editorial board (other students). You do not need to have the highest grades or be the brightest legal scholar on the staff, but the editor-in-chief must be ambitious and willing to be a "first among peers," all of whom have healthy egos (in other words, it's sort of like being Chief Justice). Your main duty is to oversee the production of the books, and insure they get published. It also falls on the editor-in-chief to pick up any slack in the staff, since the buck stops with you. It does not require heavy-duty administration skills but it does require some, and may be an indicator that she will be a capable leader of the Judiciary and able to work with the diverse personalities and egos involved.

• She was a law clerk to Hawaii Supreme Court Justice Robert Klein - Like Law Review, a good indicator of her intellect and work ethic. Clerking is a sought-after plum, and a feather in your cap, for sure. As a result of her clerkship, she already has an insider's view of the workings of the Hawaii Supreme Court. A plus.

• She is presently serving on the Court of Appeals - This is perhaps her greatest qualification, since appellate judges have public paper trails that reveal how they have approached cases. Our review of her recent opinions showed her to be careful and thoughtful, and a judge that produces clear opinions and analysis. There are no obvious indicators in her opinions that she leans to either side in the political spectrum. A very good sign.

Let's also address some of the criticism leveled at her qualifications as reported by Dave Shapiro:

• "Poor temperament" - We're sorry, we can't figure out what this is supposed to mean. Usually, it's a sign that a judge does things like screams and yells at lawyers, parties, and witnesses, falls asleep on the bench, issues crazy rulings, or similar things, but we've heard nothing of the sort about Judge Leonard. Nor has our review of the recordings of ICA oral arguments in which she has participated revealed anything but the usual level of judicial questioning, and certainly nothing that we'd consider "intemperate." Even were she to exhibit a strong personality, that is no disqualification. Unless specifics accompany such charges, objections related to "temperament" are usually meaningless.

• "Lack of administrative experience" - Again, we're confounded on what this truly means. Other Justices have served as administrators, mostly in government. Is "lack of administrative experience" a code word for "hasn't served in government?" Who knows. She was a partner in a large Honolulu firm, and depending upon her role in the firm she could possess a lot of administrative experience. Managing complex litigation can often be an admin challenge, even though the title "Administrator" does not show up on your resume. Besides, many others lacked obvious administrative experience prior to becoming Chief, and it didn't seem to hinder them.

• "Only two years of judicial experience on the Intermediate Court of Appeals" - This is another one that leaves us scratching our heads. To be a "good" appellate judge -- especially on a court that exercises discretionary jurisdiction -- you don't need "judicial experience." Let me say that again: to be a well-qualified appellate judge, you do not need to have prior judicial experience. You need to have been on the planet for a while to be aware of how life treats the people whose cases you are deciding, and you need to have been a lawyer for a while to understand how the law can work for or against those people, but the late meme that in order to do a good job appellate judges must have served on a lower court bench is just nonsense. Indeed, the one thing that just about every ABA-accredited law school does well is train students how to be appellate judges. Christoper Columbus Langdell saw to that when he pioneered the case method at Harvard Law School. This method -- in which students study appellate opinions -- was universally adopted at other law schools, and remains the dominant teaching method in law schools today. Couple that with the one practical non-elective course in law school, moot court, and most students may not know how to try a case or draft a contract or a will when they graduate, but by gosh they will have a pretty good idea how to think like an appellate judge.  

Stay tuned. The time between now and the Senate confirmation hearings could get interesting. But at least now you have some tools to distinguish the signal from the noise.

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