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The Honolulu Advertiser
Posted on: Saturday, January 25, 2003

Hawai'i court nominee doubted

By Derrick DePledge
Advertiser Washington Bureau

WASHINGTON — The American Bar Association has determined that Frederick "Fritz" Rohlfing III is not qualified to serve as a judge for U.S. District Court in Hawai'i — a finding that could complicate his confirmation by the U.S. Senate.

Rohlfing, a partner at the Honolulu firm Rohlfing & Stone, was nominated by President Bush last January to fill a vacancy on the court, but did not receive a hearing before the Senate Judiciary Committee in the last session of Congress. Bush submitted Rohlfing's name again this month along with 30 other nominees who did not get a hearing or were rejected by the committee.

The ABA does not have a formal role in the confirmation process, but it does evaluate federal judicial nominees. President Bush decided shortly after taking office to end the long-standing practice of consulting with the group before sending nominations to the Senate, but senators routinely consider ABA ratings when evaluating nominees.

Rohlfing is the second of Bush's 131 judicial nominees to receive an "unqualified" rating by the ABA. David Bunning, the son of Sen. Jim Bunning, R-Ky. — confirmed by the Senate last year as a district court judge for the Eastern District of Kentucky — was the first.

"The administration believes that Mr. Rohlfing is qualified to serve, and we'll continue to support his nomination fully," said Monica Goodling, a spokeswoman for the U.S. Department of Justice.

Rohlfing did not respond to requests for comment left at his law office yesterday.

Sen. Dan Inouye, D-Hawai'i, indicated yesterday he would not support Rohlfing's nomination. Last January, the senator said he knew Rohlfing's father, former state legislator Fred Rohlfing, and would likely back Rohlfing's confirmation, pending an FBI background check and reviews by the ABA and the Hawaii State Bar Association.

"He would be compelled today to oppose the nomination," said Jennifer Sabas, Inouye's chief of staff in Hawai'i. She described a "qualified" rating from the ABA as a "bottom-line standard."

Sen. Daniel Akaka, D-Hawai'i, said he remains neutral on the nomination, but will take the ABA rating into consideration, along with other background material.

The views of home-state senators traditionally are given great weight in judicial nominations. Sen. Orrin Hatch, R-Utah, chairman of the Judiciary Committee, has said he will consult with home-state senators, but also promised quick action on Bush's nominees.

ABA officials do not release the content of their evaluations publicly unless asked by the Senate to discuss it at a nominee's confirmation hearing. The evaluations examine a nominee's experience, reputation and judicial temperament and are based in part on confidential interviews with peers in the legal community.

An ABA committee decides whether a nominee is well qualified, qualified, or not qualified for a lifetime appointment to the federal bench. If the committee is divided, the ABA includes a minority opinion in its rating for the Senate.

In Bunning's case, a lawyer who reviewed the ABA's findings told the Senate that Bunning was qualified but negative opinions about his nomination may have been influenced by his age — 35 at the time — and the fact that he was a senator's son.

Bunning also had the enthusiastic support of home-state Sen. Mitch McConnell, R-Ky., a Judiciary Committee member in the last session of Congress, and three federal judges from Kentucky who testified on his behalf.

Rohlfing, 46, applied for the nomination after talking with state Rep. Barbara Marumoto, R-19th (Kaimuki, Kahala, Wai'alae Iki), a Republican who chaired Bush's 2000 presidential campaign in Hawai'i.

In his 19-year legal career, Rohlfing has worked exclusively in civil law, mostly corporate, real estate and personal injury cases. In early 1985, he served as chief attorney for state House Republicans, a role he reprised in early 1995 for state Senate Republicans. He also is the former president of Aloha Sports, which operated the Aloha and O'ahu Bowls.

In a nomination questionnaire last year, Rohlfing wrote that he had taken four cases to verdict or judgment, one as sole counsel and three as chief counsel.

"He is very qualified," Marumoto said, adding that she hoped he would get a confirmation hearing soon.

Last year, the Hawai'i State Bar Association interviewed Rohlfing and conducted its own evaluation. It found him "highly qualified," its best rating. Association president Douglas Crosier said the group had received negative comments about the nomination from anonymous sources, but it did not outweigh strong support for Rohlfing in the legal community.

After learning of the ABA's rating this month, Crosier said the association took another look at its endorsement and decided to stand by its conclusion. "I haven't heard anything to change it," he said.

Crosier said it was difficult to respond to the ABA's rating without knowing details.

"We wanted to know, as a starting point, why," he said. "We've had to revisit our rating because of what has happened."

Showdowns are looming in the Senate over several judicial nominations, with the fiercest battles likely to involve candidates for the appellate courts. The Senate confirmed 100 Bush nominees during his first two years in office.

After Republicans took control of the Senate with the November elections, Bush chose to renominate two candidates for the 5th U.S. Circuit Court of Appeals in New Orleans — Priscilla Owen of Texas and Charles Pickering of Mississippi — whom Democrats on the Judiciary Committee rejected last year.

Both Pickering and Owen received "well-qualified" ratings from the ABA.