Senator Les Ihara, Jr. offered the following comments in opposition to Ed Kubo’s judicial confirmation during a floor speech on Wednesday, February 3, 2010:
“Madame President. I rise in opposition to G.M. 109.
I would like to first acknowledge the outstanding service Mr. Kubo has provided to our nation and state as the former Hawaii U.S. Attorney. I particularly appreciate his extensive involvement in our community, and I wish him well if he is confirmed today.
Madame President, I was not so troubled by the non-disclosure issues that have been discussed, but I believe a fundamental value in our system of democracy is the respect of law. And in the judiciary branch of government there is no higher value than the respect of law.
I believe the nominee failed to demonstrate respect for the law in an incident that occurred in his judicial confirmation process. I believe his actions were inadvertent, but since he indicates they were intentional…I must respectfully disagree.
During his confirmation hearing, the nominee responded to testimony opposing his confirmation by recounting his role as the testifier’s employer and in the process revealed that the testifying employee was under the care of a psychiatrist or psychologist.When asked if revealing this medical information was proper, the nominee stated that – it was appropriate because the Judiciary Committee is the trier of fact and judging the credibility of the testifier’s accusations was relevant to understand his accuser’s state of mind. The nominee further explained the medical information was also public knowledge he heard from other U.S. Attorneys outside the office.
Madame President, in this state we have a constitutional right to privacy and state laws that prohibit employers from revealing medical information without the employee’s consent. And the nominee has acknowledged he was not aware of any waiver of the employee’s right to privacy, implied or otherwise.
Even if the accusations against the nominee were false, I believe this does not justify revealing private medical information that only the employer, employee and his doctors knew was true.
Even if the medical information was public knowledge because it came from reliable sources, it was the employer – the nominee, and no one else, who confirmed the information as fact.
But let’s say Mr. Kubo’s justification was valid, and he relayed only public knowledge that his critic had received certain medical care. I believe it would be inappropriate for other judicial nominees to share public knowledge to share the state of mind of a critic even if that information was reliable but unsubstantiated – that his critic was under the care of a psychiatrist or psychologist.
I believe the nominee did not provide due respect to the law in revealing private medical information to defend himself during his confirmation hearing.
I understand the quandary he might feel this situation poses. He told me his statements might have been in-artful, but he claims it was appropriate to reveal the employee’s private medical information.
This incident happened in the course of seeking approval for his own judicial nomination, and I believe the nominee’s actions are unbecoming of a judge for the State of Hawaii.
For these reasons, I must fulfill my constitutional duty by opposing the confirmation of the nominee.
Thank you Madame President.”