[ OUR OPINION ]

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State bar should explain
‘not qualified’ rating

THE ISSUE The state's association of lawyers has specified the reasons for its negative assessment of a nominee for Family Court but not of a nominee for Circuit Court.

THE Hawaii State Bar Association has opened itself to criticism because of its vague assessment of Ted Hong as being unqualified to be a circuit judge. The association refused to expound on what it determined was Hong's inappropriate "temperament." Hong's nomination was rejected by the state Senate, and Governor Lingle understandably has accused the association's rating of Hong as being politically motivated. Future assessments by the association need to be more specific.

Dale W. Lee, the bar association's president, attributes the lack of specificity to the need to protect the confidentiality of lawyers who complained about Hong's demeanor. However, the American Bar Association is able to explain the nature of what it regards as a federal judicial nominee's temperamental deficiencies while protecting the confidentiality of its sources. The Hawaii association should follow the national association's model.

Judicial temperament is among three criteria used by the ABA and seven used by the HSBA in assessing judicial nominees' suitability for the bench. In the HSBA's negative assessment of Deputy Maui Prosecutor Simone Polak, Chief Justice Ronald Moon's nominee to be a Family Court judge on Maui, the association pointed specifically to her lack of Family Court experience.

Unlike the other categories, temperament is subjective and is measured by other lawyers' observations, experiences and opinions. In describing Hong's inadequate temperament, Lee simply recited the association's definition of the term as including a variety of positive behavioral characteristics without saying which ones Hong lacks.

In contrast, consider the blistering and descriptive testimony before the U.S. Senate Judiciary Committee regarding two nominees of President Bush's assessed by the ABA as lacking in appropriate judicial temperament:

>> California attorney Richard M. Macias conducted the ABA investigation of Roger T. Benitez, a federal magistrate and former state judge nominated to be a U.S. district judge in San Diego. Macias testified last month that his interviews of 23 judges and 44 lawyers led to the conclusion that "all too frequently, while on the bench, Judge Benitez is arrogant, pompous, condescending, impatient, short-tempered, rude, insulting, bullying, unnecessarily mean, and altogether lacking in people skills."

As an example, Macias said Benitez "would often become irrationally upset and outraged" if an attorney asked that another lawyer be allowed to act in his place because of a scheduling conflict.

>> New York lawyer Patricia M. Hynes conducted the ABA investigation of Dora L. Irizarry, a former state judge nominated for the federal bench in Brooklyn. Hynes testified last October that she found "a starkly common theme," from her 70 interviews, that Irizarry "was gratuitously rude and abrasive and demeaned attorneys; that she flew off the handle in a rage for no apparent reason and screamed at attorneys; that she was impatient and did not fully listen to attorneys' arguments and did not have a good grasp of the legal issues presented to her; that she took offense easily, was short-tempered and volatile, and got angry when lawyers disagreed with her; that she was rigid and dismissive and did not treat lawyers with respect."

While the assessments of Benitez and Irizarry -- both of whose nominations were approved by the Judiciary Committee and await Senate floor action -- were based on confidential interviews, the state bar's assessment of Hong came, under a new system of soliciting members' opinions, from 56 e-mail messages. The confidentiality that those e-mails are afforded should not prevent the association from similarly explaining to senators and the public the particular reasons for its negative ratings.