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The Honolulu Advertiser
Posted on: Thursday, February 4, 2010

Kubo confirmed as judge with 24-1 vote

By Derrick DePledge
Advertiser Government Writer

Hawaii news photo - The Honolulu Advertiser

Former U.S. Attorney Ed Kubo

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Former U.S. Attorney Ed Kubo was confirmed by the state Senate yesterday as a Circuit Court judge after senators put aside their concerns and looked at his character and his long record as a prosecutor.

Senators, who had been close to rejecting Kubo last week, voted 24-1 for his confirmation. The turnaround came after state Sen. Brian Taniguchi, D-10th (Mänoa, McCully), the chairman of the Senate Judiciary and Government Operations Committee, dropped his opposition and decided to vote for Kubo with reservations.

Taniguchi and several other senators met privately with Kubo over the past few days to discuss why Kubo did not disclose on his application to the state Judicial Selection Commission several cases where his conduct as prosecutor was criticized.

Kubo described the confirmation process as fair.

"This is a quest to find the best person they can find to serve our state and our communities," he said after the vote. "I'm just very thankful, not only for being considered by the governor and by the Senate; I am very appreciative for all the people and everything that they've done in stepping forward.

"All those many phone calls, e-mails, letters, and just waving to me from the street with words of encouragement, bopping their horns. It's very, very touching for me."

Taniguchi's switch was essential, since state Senate President Colleen Hana-busa, D-21st (Nänäkuli, Mäkaha), and other majority Democrats said they would follow his recommendation as chairman after the committee deadlocked last week on the nomination.

Taniguchi said yesterday that Kubo privately defended his reasons for not disclosing the cases, but suggested he may have done things differently if he had another chance, which is what Taniguchi had been looking for from Kubo in public hearings.

"I believe he was sincere, and this was satisfactory to me," he said.

Taniguchi said he wanted to give Kubo a chance, given his record as prosecutor and the widespread support his nomination received in the legal and political communities.

State Sen. Clayton Hee, D-23rd (Käne'ohe, Kahuku), said the difference between Kubo and some of the judicial nominees the Senate had rejected in the past was that senators could balance their concerns about disclosure with his record as prosecutor. He also said Kubo directly answered Hee's questions in a private meeting.

"But for his body of work, I'm not sure I would have been satisfied with that answer," Hee, a former judiciary committee chairman, said of Kubo's explanations on disclosure. "Because the fact is, he chose not to disclose it. Whether it was conscious or unconscious, it wasn't disclosed."

Kubo was U.S. Attorney from 2001 until October 2009 and previously served as an assistant U.S. attorney for 11 years. He also worked as a deputy prosecutor and a private trial attorney in Ho- nolulu.

State Sen. Sam Slom, R-8th (Kähala, Hawai'i Kai), a strong supporter of Kubo's nomination, was critical that several senators appeared to be basing their vote on private meetings with Kubo rather than the information that was presented at two public hearings.

"After the hearings were finished, I thought it was improper to have separate hearings behind closed doors with only some members of the state Senate," he said. "When we're looking at a matter this important, I think it is incumbent upon us to be as transparent as possible, to open up to everyone — including the public and media — the questions and answers that take place."

State Sen. Les Ihara Jr., D-9th (Kapahulu, Kaimukí, Pälolo), was the only senator to vote against Kubo. He said he believed Kubo should not have said that a former co-worker at the U.S. Attorney's office who provided written testimony against him had been under psychiatric care.

Ihara said Kubo's comments, at one of the public hearings on his nomination, violated his former co-worker's right to privacy.

Kubo, a Republican, was nominated by Gov. Linda Lingle. His confirmation is for a 10-year term on the Circuit Court on O'ahu.

Kubo, who watched the Senate vote from the gallery with his wife, Tammy, and his family, acknowledged afterward that he was anxious.

"I felt like I had just finished one of my murder trials, and the jury was about to come in with its verdict," he said. "The anxiety level is there. But, in the end, you know that whatever is meant to be, will be.

"And life goes on."