Sunday, September 2, 2001

Gavel art

Judgment Call

Partisan fight may loom in the Senate
over the judgeship nominations of
two prominent Hawaii lawyers

By Lee Catterall

Payback rumblings emanating from the reversals of political power in the Senate and White House have caused what could easily become a protracted struggle over who will fill two federal judgeships reserved for Hawaii. Nor are they the only judicial appointments being held up. Ideological differences between the White House and the Democrat-controlled Senate -- and within the Senate -- threaten to stall the confirmation of many of President Bush's judicial nominees across the nation.

Federal judges are named for life and can affect the basic values of American society for decades. Thus, ideological differences can cause justifiably prolonged confirmation fights that are intrinsic to the Senate's constitutional role of advice and consent. However, in the judicial vacancies open to Hawaii candidates, ideology is not a major issue -- at least not yet.

Instead, the conflict features politically territorial claims, archaic protocols, frustrating maneuvers, two lawyers of unquestionably high stature and possibly a third nominee yet to be named.

SINCE 1984, when Judge Y.C. Choy took senior status, a form of retirement, Hawaii has been unrepresented on the 28-judge panel of the 9th U.S. Circuit Court of Appeals, which encompasses nine states, Guam and the Northern Mariana Islands. In 1997, Sen. Daniel Inouye successfully attached a provision to a budget bill that entitles each state to at least one judge on the U.S. Circuit Court of Appeals.

The Democratic Nominee

James E. Duffy:
His nomination to the 9th Circuit Court of Appeals
by President Clinton languished for a year and a half
in the Republican-controlled Senate and quietly died.

The Republican Nominee

Richard R. Clifton:
It has been suggested that his nomination to the 9th Circuit
be delayed by the Senate, now in Democratic hands, until
Duffy's name is resurrected for another federal appointment.

President Clinton sought to fill that place in June 1999 when he nominated James E. Duffy, following the tradition of relying upon recommendations of senators of his own party from the affected state. Duffy is a highly respected partner in the firm of Fujiyama, Duffy and Fujiyama and former president of the Hawaii State Bar Association. The Republicans who then controlled the Senate allowed Duffy's nomination to evaporate with the end of the Clinton administration, effectively stripping Inouye of any proprietary interest he might have claimed to a choice for the appellate opening.

After President Bush took office, he nominated Richard R. Clifton to the 9th Circuit spot. In the absence of a GOP senator from Hawaii, Bush made state Rep. Barbara Marumoto, who headed his Hawaii campaign in last year's election, his principal adviser on Hawaii-related appointments. Marumoto and state Republican Chairwoman Linda Lingle both recommended Clifton, a partner in the firm of Cades Schutte Fleming & Wright.

"Mr. Duffy's name is no longer in contention," says Marumoto. "It seems to me that if there's going to be one from Hawaii in the 9th Circuit, it should be Mr. Clifton."

Senator Inouye most likely will have something to say about that. Before deciding whether he will support the Clifton nomination, Inouye says he is awaiting an FBI report, Clifton's American Bar Association rating and, "equally important," an explanation of why the then-GOP-controlled Senate Judiciary Committee refused to confirm Duffy to the post.

"I want to receive an official letter from the committee telling me why they turned him down, or why they didn't even consider him, when he had the highest grades," Inouye says. "I think I owe that to Mr. Duffy."

Richard Miller, a law professor emeritus at the University of Hawaii, has suggested that the Senate should refuse to confirm Clifton until Bush agrees to nominate Duffy to a federal judgeship. An opening in Hawaii's U.S. District Court was created when Judge Alan C. Kay assumed senior status last year.

"It just seemed to me that the Republicans had screwed up a perfectly good appointment that should have gone through routinely," says Miller, who adds that he also regards Clifton to be fully qualified for a federal judgeship.

Inouye says he "absolutely" agrees with Miller that Bush should nominate Duffy to a federal judgeship.

One-upmanship over spots on the federal bench in Hawaii goes back to January 1981, when President Carter submitted Walter Heen's name in the waning days of his administration. President Reagan withdrew that nomination upon entering the Oval Office, although Heen continued as an interim federal judge for nearly a year. The late Harold Fong eventually was nominated for the spot and received fairly prompt confirmation, as did later Reagan nominees David Ezra and Kay.

The loudest shots in the war over federal judgeships were fired in 1987, when liberals sharply attacked Reagan Supreme Court-nominee Robert Bork, who was rejected by the Senate. When Republicans gained control of the Senate in 1995, President Clinton's nominees encountered acrimony and delays; many withdrew in face of GOP opposition.

The battle over Hawaii's federal judgeships became heated after President Clinton nominated Susan Oki Mollway in December 1995 for an opening created by Harold Fong's death. The Judiciary Committee approved her nomination in April 1996 and sent it to the Senate floor, but it got waylaid.

Under Senate protocol, a senator is granted the privilege of putting a hold -- a so-called "blue slip" -- on any nomination. Sen. Lauch Faircloth, R-N.C., exercised the privilege, complaining that Mollway had "very, very liberal ideas."

Richard Clifton, in his Bishop Street office, was a campaign adviser
for both current Republican Party Chairwoman Linda
Lingle and former U.S. Rep. Pat Saiki.

CLINTON'S first term ended without Senate action on Mollway, so Clinton renominated her at the beginning of his second term. The process again was delayed, this time by the insistence of then-Sen. John Ashcroft, R-Mo. -- now President Bush's attorney general -- on new committee hearings. The committee met in February 1998, and the Senate confirmed her nomination two months later -- nearly two-and-a-half years after her initial nomination. In contrast, U.S. District Judge Helen Gillmor's confirmation process in 1994 took less than two months.

Inouye complained then that "the delay in filling this judicial vacancy has had a harmful impact on our court system. In the past 12 months, filings of civil cases in the Hawaii District Court have increased 13 percent and filings of criminal cases are up 8 percent."

Clinton's nomination of Duffy drew praise from the legal community. UH law professor Randall Roth, then president of the Hawaii Bar Association and campaign manager for Linda Lingle in her 1998 gubernatorial campaign, described Duffy as among "the very best" of possible nominees.

When Bush took office, there were 110 vacancies -- more than one-eighth of the 853 authorized district and appellate court judgeships. He included two Clinton nominees -- both of them African Americans regarded as moderate to liberal -- among his first nominees. His other choices were widely viewed as conservative in varying degree.

Alberto Gonzales, the White House counsel overseeing judicial nominations, added friction by discontinuing the practice of submitting the names of judicial candidates to the American Bar Association, which had given mixed reviews of Bork.

LIBERALS are worried about the effect that a stream of Bush judges will have on a federal judiciary they consider already unbalanced. They note that judges appointed by Republicans comprise a majority in seven of the 13 federal circuit courts of appeal, while only four have a majority of Democratic nominees.

James Duffy's nomination to the appeals court was a victim of
the bitter partisan battles between Republicans and Democrats
during the Clinton administration. A wall decoration in Duffy's
office reflects his love for riding horses and attending rodeos.

Among Bush's first 20 appeals court nominations was that of Clifton, who had been a legal adviser to both Lingle and former U.S. Rep. Pat Saiki. Aside from his Republican activities, Clifton enjoys praise among his peers across the political spectrum. In a letter to the White House three weeks ago, Democrat Miller said Clifton's "credentials as a lawyer are sound."

Republican Roth says Clifton "would make a terrific judge." Duffy, he says, "would be an equally terrific judge."

Marumoto says she has submitted her recommendation for the district judgeship, along with several alternative choices requested by the White House.

ONE LAWYER mentioned as a possible nominee is Randal Yoshida, a former deputy city prosecutor and Honolulu Liquor Commission administrator with conservative credentials that can be sure to elicit a response from Democratic senators. Marumoto declined to say whether Yoshida was among the names she submitted to Gonzales for the district judgeship. She also declined to divulge any of the other names, but said Duffy was not among them.

"I recommended two Republicans" for the district and appellate court judgeships, she said. "I think the president would like to nominate two Republicans."

After Clifton's nomination was announced, Miller wrote a letter to the White House, with copies to Inouye and Sen. Daniel Akaka, praising Duffy and suggesting that the Senate take no action on Clifton's nomination in the absence of a Duffy nomination to either the appellate or district court. Akaka responded that he would "keep your thoughts closely in mind," while Inouye, in his response, gave no opinion. The White House did not respond to Miller's letter.

"If they get it straight," Miller concludes, "they appoint Duffy and then go ahead and appoint Clifton to the next seat, whatever it is, then they can agree with each other: From now on, we're going to appoint good people, party be damned."

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