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Other Views
I must admit that some of the positions attorney Dan Foley has taken as an advocate concern me. I haven't always agreed with his arguments regarding the interpretation of our Constitution. Foley will be
impartial judgeI also received many telephone calls and faxes from my constituents on Kauai, asking me, begging me, to vote against his confirmation to the Intermediate Court of Appeals. These are people I respect, individuals I have prayed with and whose concern for the people of this state is unquestionable.
However, the focus of Foley's confirmation has been on one issue: his advocacy for same-sex marriage on behalf of his clients.
I did not agree with the positions argued by Foley in that case. I was one of the few political candidates who felt so strongly about that topic, I personally waved signs in favor of a constitutional amendment banning same-sex marriage in Hawaii.
But the members of the Senate were not asked to decide whether to allow same-sex marriage during our special session earlier this month. The voters have already settled that issue.
We convened to decide whether Foley was qualified to serve as a member of the Intermediate Court of Appeals.
No one disputes Foley's legal knowledge. He is an extremely good attorney; he knows the law.
But being a judge involves more than just knowing the law. As one person who called me put it, "Can Mr. Foley stop being an advocate for his own personal view points as to what is right and apply the law as the people intended it?"
That is the question. A judge cannot and should not be allowed to replace the law with his own view of what the law should be. A judge should not reform the law to fit his or her own personal view.
That is the fear of the people who have called me to voice their concern regarding Foley's confirmation. It is a legitimate fear. I do not, however, base my decisions on fear, but rather, on what I feel is right and fair.
The issue boiled down to this: If confirmed, could Foley stop being an advocate for his own personal views and base his decisions on the law? When asked this question by the Senate Judiciary Committee, Foley stated that he could and would.
Now, the question became: Do I trust Dan Foley to live up to his promise, to this commitment? I think I can.
As I've stated before, I have always known Foley to be nothing but a professional and a man of his word. The people who oppose his nomination don't trust him. They base their decisions on his conduct as an advocate for his clients.
While I can see from their perspective that his actions in that capacity are not favorable, that does not address the issue of whether he is a man who will live by his word. Is he a person who can be trusted to fairly apply the law, as it is written, to a given situation?
The bottom line is fairness. If I were to condemn Foley for his actions as an advocate because of his work in the same-sex marriage issue, it would be unfair. If I were to condemn Foley for his actions as an advocate for any of his clients, it would be unfair. I was elected to this office to listen to all sides of an issue and to be fair to all sides.
IT would be hypocritical of me to demand that a judicial nominee look at all sides of the issue and be fair yet not accord him or her that same standard when voting to confirm.
Foley has the qualifications to be a good judge. I feel that he was honest and sincere when he testified in front of the Senate Judiciary Committee that he can stop being an advocate for his personal views and base his decisions only on the law. I have no basis to believe otherwise.
Jonathan Chun is a Democratic state senator representing the 7th District of South Kauai and Niihau.