Lingle's high court choice a surprise to some

By Lynda Arakawa
Advertiser Capitol Bureau

Gov. Linda Lingle yesterday appointed Honolulu attorney James E. Duffy Jr. to a 10-year term as an associate justice to the Hawai'i Supreme Court.

James E. Duffy Jr. was appointed by Gov. Lingle yesterday to the Hawai'i Supreme Court. Duffy, a well respected lawyer, has ties to top Hawai'i Democrats. Richard Ambo • The Honolulu Advertiser

Lingle chose Duffy, 60, from a list of six nominees submitted by the Judicial Selection Commission last month to fill the vacancy created by the December retirement of Justice Mario R. Ramil. Duffy's appointment is subject to confirmation by the state Senate. The annual salary for associate justices is $115,547.

Sen. Colleen Hanabusa, chairwoman of the Senate Judiciary and Hawaiian Affairs Committee which will handle Duffy's confirmation hearing, said she was surprised by the appointment only because of Duffy's affiliation with Democrats, but she described him as "highly qualified."

"I think the selection by the governor is probably the most telling thing because in light of her recent criticism of the court, I believe that she's looked to Mr. Duffy for his ability as an arbitrator, mediator and consensus builder, and she's probably looking to him to assist in the problems as she sees it that's now in the Supreme Court," said Hanabusa, D-21st (Nanakuli, Makaha).

"I think she went to the character of the person, the qualifications, and put politics aside, which is what you'd like to see when you're selecting a judicial candidate," she said.

Lingle's appointment comes days after she publicly criticized the state Supreme Court before a group of federal judges, magistrates and lawyers last week. Lingle talked about how lawyers have expressed concerns about the high court, including a backlog of cases, inconsistent rulings, and a lack of collegiality among the justices.

Duffy said he has heard about the friction among the justices third-hand but he understands it is "common knowledge."

"I feel that with the mediation work I have done and the fact that I have worked with all of these individuals for a long period of time, that I do respect each of them, I like each of them, I don't foresee any problems in working with them," he said.

Lingle expressed confidence that Duffy would keep issues on a professional level and said she was looking for a justice who saw the role of the court as interpreting the law, rather than making it.

Duffy was a protégé and partner to the late Wallace Fujiyama, a close friend of former Gov. Ben Cayetano and other prominent Democrats and a political power broker who worked closely in the inner circles during decades of Democratic rule.

Duffy was nominated by former President Bill Clinton to the 9th U.S. Circuit Court of Appeals in 1999 after his name was submitted by U.S. Sen. Dan Inouye. But the nomination stalled in the Republican-controlled U.S. Senate and President George W. Bush pulled Duffy's nomination, instead choosing Hawai'i Republican Party attorney Richard Clifton.

Lingle said she was aware of Duffy's political ties but said they were not a consideration.

"I really was looking for someone who I thought could bring a good demeanor to the court," she said. "Someone who would take these cases that come before them on the law and on the facts of the case without coming in with a judicial philosophy other than the philosophy of not making law but interpreting law."

Duffy said he was honored and grateful for the appointment.

"Hawai'i has been very good to me both personally and professionally, and this is my opportunity to pay back some of the good things that have been done for me in the practice of law and personally," he said.

He also said he views the high court's role as the timely disposition of cases on appeal, and attributed his understanding of the judicial system to his 35 years in private practice representing both plaintiffs and defendants as well as large corporations and individuals in every court on every island.

Duffy was senior partner at the law firm of Fujiyama, Duffy & Fujiyama, and has focused his practice on matters including personal injury, professional liability, product liability and life insurance claims, commercial law, family court and criminal law litigation. He has also been involved in arbitration and mediation.

A former president of the Hawai'i Bar Association, Duffy also reviewed operations at Kamehameha Schools Bishop Estate in the early 1990s as a special master and concluded in a report that education had become a secondary priority to the estate's finances. He also served as lead attorney for the Office of Hawaiian Affairs and its board of trustees in its litigation against the state in the ceded lands revenue case.

Many say the legal community holds Duffy in high regard.

Walter Heen, a retired state appellate judge and former Democratic Party chairman, called Lingle's appointment an "excellent selection."

"He has the widest experience in law, certainly is one of the most highly respected attorneys in town, and will bring a balance to the court intellectually and in terms of personality that is sorely needed on the court," Heen said. "Jim will go very far in returning the court to an appreciation of collegiality."

Heen said from a political aspect the appointment "does surprise me" but "political assumptions aside there was no other choice."

University of Hawai'i law professor Jon Van Dyke said Duffy is "the kind of person that everybody brings in on the very tough questions to serve as a mediator because he has the ability to see both sides and understand the positions of people on both sides and to find a solution that will be fair and just and sympathetic to the different points of view."

The other nominees on the list submitted to Lingle by the Judicial Selection Commission were Honolulu lawyer Lowell Chun-Hoon and circuit judges Eden Hifo, Sabrina McKenna, Richard Perkins and Richard Pollack.

Reach Lynda Arakawa at larakawa@honoluluadvertiser.com or at 525-8070.