Senate “Advise and Consent” is a Vital Part of the Judicial Appointment Process
By Hawaii State Senator Gary L. Hooser
The nomination of Katherine Leonard to serve as a judge of the Hawai‘i Intermediate Court of Appeals (ICA) has again focused attention on the Hawai‘i State Senate’s duty to “advise and consent” on the governor’s nominees for judicial posts. In past cases, questions of the nominees’ fitness to serve have led some to ask whether the process is overly negative, and how such individuals of apparently high qualifications would not receive immediate and unanimous approval. However, the nature of the Senate’s legal and constitutional duty
requires no less than a deep and complete consideration of the nominee’s history. In cases where the nomination is to a panel of judges such as the ICA, it is also prudent to look at the collective experience and makeup of the group.
Advise and consent is a vital part of our constitutional system of checks and balances. It ensures that the governor’s appointments are not made for purely partisan or personal reasons, and that the individuals who attain these offices are well suited to their positions. In order to preserve the system and protect the integrity of our courts, the Senate must take its responsibility seriously.
The governor selects her judicial nominees from a list provided by the Judicial Selection Commission, which reviews the qualifications of all judicial applicants. In a majority of cases, the nominee passes Senate confirmation without incident. In some cases, however, a nominee presents some aspect of history, personality, or practice that raises concerns about the appointment, and his or her suitability for the position. When concerns become apparent, it is the Senate’s responsibility to look even more closely at the nominee and to pose appropriate questions as to the level and relevance of those concerns.
The Senate’s review of nominees to appellate courts carries additional weight, since these courts consider some of the community’s most important and most challenging cases. Precedents set by appellate cases become a part of the larger body of Hawai‘i law, and find application in numerous other matters that come before the lower courts; the concern is not solely with the individual matter before the court, but also a continuing line of cases into the future. Additionally, under the appellate court system now in place in Hawai‘i, the Intermediate Court of Appeals considers the bulk of appellate cases.
These factors combine to make our consideration of nominees to the Hawai‘i Intermediate Court of Appeals exceptionally important to our community as a whole. The reasoning and decisions of these judges will have a tremendous impact on our lives, our business climate, and our government. Our review must be thorough, our actions thoughtful and deliberate.
Committee Chairs, their members, and Senators in general find no pleasure in raising questions about a nominee’s qualifications, competence or character. It is not easy, but it is sometimes necessary. Avoiding the difficult task of thorough review—simply rubber-stamping the governor’s choices—would compromise the integrity of the entire process, and rob the Senate, the public, and our state government of this vital constitutional protection.
The fact that the Judicial Selection Commission has included Ms. Leonard on the list provided to the governor, and that the governor has placed her nomination before the Senate, speaks to her basic qualifications to serve. The Judiciary and Labor Committee has reviewed and heard testimony on her record and qualifications. Most members of the Senate have also conducted their own individual due diligence and in many cases met personally with Ms. Leonard. On Tuesday we will further review and discuss the Judiciary and Labor Committee’s report and recommendation, and cast our final votes, either yea or nay, on the nomination. Each careful step helps ensure the fair and complete consideration of this, and every, nominee.
With all of these factors in mind, it becomes apparent that the Senate’s duty of advice and consent is often challenging, sometimes dramatic, but always productive. I am confident that it works as it should, and remain committed to respecting, preserving, and fulfilling this vital constitutional function.
Senator Gary Hooser is Majority Leader of the Hawai‘i State Senate. He represents District 7 (Kauai, Niihau).