[ OUR OPINION ]

Rohlfing should withdraw
or invite torrid hearing

THE ISSUE The American Bar Association has evaluated Frederick Rohlfing as "not qualified" to be a federal judge in Hawaii.

A rare negative evaluation by the American Bar Association has endangered President Bush's nomination of Frederick W. "Fritz" Rohlfing III to a U.S. district judgeship in Hawaii. The Senate Judiciary Committee has conducted no hearing on the nomination, and Chief District Judge David Ezra complains that the judge shortage in Hawaii is causing a crisis. Either the committee should move ahead on the nomination or Rohlfing should withdraw rather than face what will be a grueling and possibly embarrassing confirmation process.

Before George W. Bush was elected president, the 15-member ABA Standing Committee on the Judiciary would submit its evaluation of a judicial candidate to the White House before the nomination. A negative rating could be expected to result in a presidential decision not to nominate the person under consideration. Bush ended that screening process upon taking office, and the bar association now conducts its evaluations after the nominations are made.

The ABA rates judicial nominees as "well qualified," "qualified" or "not qualified." Rohlfing was nominated in January 2002 but received no ABA evaluation that year. Of the 134 judicial nominees evaluated by the bar association during Bush's first two years in office, only eight received at least one "not qualified" vote on the ABA committee. David Bunning of Kentucky was the sole nominee regarded as not qualified by a majority on the committee. Bunning nevertheless was confirmed unanimously by the Senate.

Of the 52 Bush judicial nominees evaluated by the ABA this year, Rohlfing, son of former Republican state Sen. Fred Rohlfing, is the only one who was given a "not qualified" rating by the committee. More devastating is the fact that its evaluation was unanimous. An evaluation is based on an investigation ordinarily conducted by a committee member from the nominee's appellate circuit -- the 9th U.S. Circuit Court of Appeals in Rohlfing's case. Normally, a negative recommendation by the investigator prompts a second investigation conducted by a lawyer appointed by the committee chairperson; that may be why the committee did not complete its evaluation of Rohlfing last year.

The ABA considers professional competence, integrity and judicial temperament in its evaluations. Factors are said to include intellectual capacity, judgment, writing and analytical ability, legal knowledge, experience, character, integrity and general reputation -- not political or ideological considerations. The ABA generally is called upon to disclose investigative findings leading to a negative evaluation to the Senate Judiciary Committee.

In Bunning's case, a majority on the ABA committee agreed that he lacked the experience needed to overcome the general standard that a person have at least 12 years of practicing law to be capable of being a federal judge. Rohlfing passes that test with about 20 years of law practice behind him.

While the Hawaii State Bar Association has rated Rohlfing as being highly qualified to be a federal judge, his legal knowledge and breadth of experience are not widely known in the community. He has been recognized more as head of Aloha Sports Inc., producer of the Aloha and Oahu football bowl games in past years.

The factors leading to Rohlfing's negative rating have not been made public, but they will be if he decides to face the Senate committee. He should make that decision promptly and request a Senate hearing or step aside.