Senate OK puts focus on rating of nominees

By Gordon Y.K. Pang and Lynda Arakawa
Advertiser Capitol Bureau

The Senate Judiciary and Hawaiian Affairs Committee yesterday voted 6-0 to approve the nomination of a District Court appointee, despite a negative recommendation from the Hawai'i State Bar Association.

But the 2 1/2-hour discussion questioned the bar association's process for reviewing judicial nominees as much as it did Maui Deputy Prosecutor Simone C. Polak's qualifications to be a Family Court judge.

The association's "not qualified" recommendation was the second given to a judicial pick this year, after favorable ratings given to nominees since 1992. Its unfavorable testimony against Circuit Court nominee Ted Hong, whose nomination was rejected by the Senate by a 13-12 vote two weeks ago, set off a maelstrom in the political and legal communities.

In Hong's case, the committee voted 5-2 to approve, with two "aye" votes with reservations. Hong was nominated by the governor, as are all Circuit Court picks. District Court nominees are selected by the chief justice of the Hawai'i Supreme Court.

Polak's 6-0 tally yesterday came with Sen. Les Ihara, D-9th (Kapahulu, Kaimuki, Palolo) voting with reservations. Sen. Carol Fukunaga, D-11th (Makiki, Pawa'a) was excused from the meeting. Judiciary Chairwoman Colleen Hanabusa, D-21st (Nanakuli, Makaha) said the Senate likely would vote on Polak's nomination Monday.

Hanabusa said she believed Polak's nomination would pass the Senate.

Gov. Linda Lingle also predicted Polak would be confirmed, saying the motives of those backing her who voted against Hong because of the bar association rating would be "exposed, in the sense that that wasn't the reason they voted against Ted."

But Sen. Rosalyn Baker, D-5th (W. Maui, S. Maui), who said she would support Polak, said the bar association rating was one of the factors she weighed before deciding to vote against Hong, yet Polak's case was far different.

While Hong was rated as unqualified based on judicial temperament — "a quality that you either have or you don't have," Baker said — Polak was found unqualified because of her legal experience.

Based on information from lawyers and others, "I'm convinced that Ms. Polak has the requisite experience, background, ability to learn and to be competent in all of the legal disciplines that she needs to," Baker said.

Sen. Shan Tsutsui, D-4th (Kahului), who voted against Hong, said he also was inclined to support Polak. He noted the bar association's reasoning was different in the two cases, and that many sitting judges had no more legal experience than Polak when they joined the bench.

Also, unlike Hong's nomination, Tsutsui said, he had not heard community concerns about Polak's appointment.

In giving Polak a "not qualified" rating, the bar association board of directors cited an "absence of a substantive civil litigation and/or family court (domestic relations) experience." In nearly 15 years with the Maui prosecutors' office, Polak handled criminal cases, most recently in the area of criminal appeals.

Dale Lee, bar association president, said the 10-2 "not qualified" vote by the board came after extensive deliberation and was based not only on Polak's résumé, but on the unique, sensitive nature of the Maui Family Court, where Polak would sit. "It is a court where there is no luxury of on-the-job training," he said.

Attorney General Mark Bennett said the bar association's conclusion implies that it believes those who choose to spend a majority of their legal careers in a specialty field are unqualified for certain judgeships.

"The suggestion that because a person has devoted their career to working as an attorney in the criminal law — that they, because of that, are unqualified to be a judge of the District Court — makes to me absolutely no sense," he said.

Lee and Douglas Crosier, the former bar association president, defended their solicitation of confidential testimony from attorneys, a practice that began under Crosier. Hanabusa, Lingle and others had criticized the practice during the Hong debate. Crosier said he instituted the policy in an effort to encourage more attorneys to give candid opinions about judicial nominations.

"There is a climate, and has been as long as I've practiced law, of fear, a culture of fear, of retaliation, and that is a really sad thing for me to say," he said.

Crosier stressed that while the names of some of those giving testimony are withheld, they are known to the president, who first receives the communications.

Since the bar association began accepting confidential testimony on judicial nominees last year, it has given "qualified" ratings to 11 candidates made by both the governor and chief justice. Hong and Polak are the only exceptions.

But Bennett said he had no serious concerns about the confidential testimony. "I don't see a flaw in the process, just a dreadful flaw in the logic," he said.

Polak also said she did not have major concerns about the confidential process, although she questioned whether attorneys who would want to remain anonymous are in the right profession.

She also took exception to allusions made to "other reasons" attorneys gave against her nomination that were not made public.

Lee testified that questions had been raised — though not included in the board's written testimony to the Senate — about Polak's perceived lack of community service and a concern that a part-time job may have contributed to her need to seek four extensions in an appeals case.

Polak said she had done what she could in the community, including speaking to groups. She quit her part-time job with a car rental company before filing the fourth extension, she said, adding that she also had been juggling several intricate and sensitive cases at the time.

Reach Gordon Y.K. Pang at gpang@honoluluadvertiser.com or at 626-8070. Reach Lynda Arakawa at larakawa@honoluluadvertiser.com or at 525-8070.