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The Honolulu Advertiser
Posted on: Saturday, January 30, 2010

Senate delays vote on Kubo

By Derrick DePledge
Advertiser Staff Writers

Hawaii news photo - The Honolulu Advertiser

Edward Kubo

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The state Senate yesterday postponed a vote on the nomination of former U.S. Attorney Edward Kubo for Circuit Court judge until Wednesday after senators said they wanted more time to consider his record.

Senate leaders believed the vote would have been close after the Senate Judiciary and Government Operations Committee deadlocked on Kubo's nomination on Thursday.

"Some of the members felt it was kind of rushed," said state Sen. Brian Taniguchi, D-10th (Mānoa, McCully), the committee's chairman, who has recommended that Kubo be rejected.

"They didn't have an opportunity to review all of the record."

Taniguchi and other senators are concerned that Kubo did not fully disclose his role in several controversial cases in his application to the state Judicial Selection Commission.

Taniguchi was troubled by Kubo's answers to the committee about the lack of disclosure.

Senate staff has also found another case, which did not come up before the committee, in which Kubo's conduct was criticized in a written court decision but he apparently did not disclose it on his application.

In that case, two bank robbery convictions were reversed in 1993 after the 9th U.S. Circuit Court of Appeals found that Kubo made "extensive and prejudicial" comments in his closing argument that suggested to the jury that a defendant must be guilty because he remained silent during questioning by police after his arrest.

As in previous cases the committee has cited, senators are concerned not only by the criticism of Kubo since it is not extraordinary for a prosecutor to be criticized by a court but the fact that he apparently did not disclose it on his application.

State Senate Minority Leader Fred Hemmings, R-25th (Kailua, Waimānalo, Hawai'i Kai), who supports Kubo, faulted what he described as behind-the-scenes politics, innuendo and anonymous accusations.

"One of the greatest principles of America's jurisprudence is you're allowed to face your accuser, and a lot of behind-the-scene maneuvering was going on where it was impossible for the nominee to defend himself because he didn't know who was saying what, when, where and how," Hemmings said. "Decision-making should never be made under those circumstances, and I think the majority party is going to hopefully rectify this Wednesday."

Gov. Linda Lingle, who nominated Kubo, said, "I think Ed should get confirmed. I think he will be confirmed if people vote based on his lifetime of experience here in the state, his commitment to the community, the great work he did as the United States attorney.

"I don't think there is any substantive reason to deny him, or to vote against him."

State Senate President Colleen Hanabusa, D-21st (Nānākuli, Mākaha), said she would back Taniguchi's position. Hanabusa has a policy of following the recommendations of her committee leaders.

"To me, the whole process is one where I will support my chair," she said. "And, in this case, I am supporting Senator Taniguchi's position."

State Sen. Sam Slom, R-8th (Kāhala, Hawai'i Kai), said Hanabusa's husband, former state sheriff John Souza, called him with concerns about Kubo's ability to be a judge.

Slom said Souza, who used to work with Kubo, explained that while he personally liked Kubo, he did not believe he had the qualifications.

Slom, who serves on the Senate Judiciary and Government Operations Committee, said he did not consider the call unusual or improper at the time, but now puts it into the context of the late criticism that has surfaced against Kubo and which is threatening his confirmation.

"I'm left with a sour taste in my mouth that there are political machinations other than what was presented at hearings and that there are reasons other than what we saw in those rooms," Slom said.

Hanabusa said her husband called Slom to share his opinion because he considers Slom a personal friend.

"He doesn't lose his right to have an opinion because he's married to me," Hanabusa said.