Statistics spur some
to say bench is
gender biased

Critics allege that women are
held to a different standard
in Hawaii’s legal world

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By Rob Perez
rperez@starbulletin.com

CORRECTION Tuesday, June 1, 2004 David L. Fong and Sandra Schutte were state District Court judges when they retired. A chart on Page A6 yesterday incorrectly said they were Circuit Court judges. The Honolulu Star-Bulletin strives to make its news report fair and accurate. If you have a question or comment about news coverage, call Editor Frank Bridgewater at 529-4791 or email him at corrections@starbulletin.com.

Five of the six state judges who have been bumped off the bench since 2001 were women.

That's an attention-grabbing statistic, especially given that female jurists represent only slightly more than a third of the nearly 80 judgeships in the state's judicial system.

Getting the boot Here are the six judges whose retention requests were not approved by the Judicial Selection Commission since 2001. Five of them withdrew their applications after being told their retentions would be denied. Only Judge Sandra Simms, who declined to withdraw her request, was rejected outright: Diana Warrington District Family Court, Oahu Retired November 2001 Gail Nakatani Circuit Court, Oahu Retired May 2002 David L. Fong Circuit Court, Oahu Retired October 2002 Riki May Amano Circuit Court, Big Island Retired April 2003 Sandra Schutte Circuit Court, Big Island Retired May 2003 Sandra Simms Circuit Court, Oahu Rejected May 2004

One of the five was Circuit Judge Sandra Simms, the only jurist in more than a decade to receive a formal retention rejection from the Judicial Selection Commission.

Simms' last day on the job was Tuesday. Her departure in the wake of the other cases brings greater attention to a nagging question that has been asked about the state's judicial system over the years:

Are women judges held to a different standard than their male counterparts?

Or, more broadly, are female attorneys held to a different standard?

The question is getting even more scrutiny considering what women judge nominees have faced the past couple of years when rated by the Hawaii State Bar Association.

Of the six women nominees considered by the Senate, which must confirm state judge appointments, only one was rated highly qualified by the bar, according to Sen. Colleen Hanabusa, an attorney and head of the Senate Judiciary Committee.

By contrast, nine of the 11 male nominees were rated highly qualified, Hanabusa said.

She highlighted one comparison between two nominees to drive home her concern.

Earlier this year the bar rated Simone Polak, at the time a Maui deputy prosecutor, as unqualified for a District Family Court position. The bar cited her lack of Family Court experience, especially in the divorce area, Hanabusa said.

Yet the bar last year rated Michael Broderick, former courts administrator, highly qualified for a Family Court judgeship even though Broderick had no Family Court experience, she said.

"There's something amiss in all of this," Hanabusa said. "I find it difficult to accept that women who have been nominated as judges are consistently not as qualified and the women judges up for retention are lesser qualified than the men. Something is going on. Maybe this is the 'old boy network' operating."

Despite the bar's concerns, Polak was sworn in as a judge Friday. Broderick joined the bench last year.

Some say the two sets of data -- the non-retentions and the bar ratings -- reflect a gender bias.

The fact that men dominate the selection commission -- seven of the nine members, including the chairman, are male -- explains some of the bias, according to those who believe a double standard exists.

It is a bias, they say, that considers aggressiveness a positive trait in male attorneys but a negative one in women lawyers. Or that views a compassionate woman judge as being soft on crime but a male judge with the same trait as being caring and wise.

"This is certainly a community that is very testosterone-rich," said attorney Susan Hippensteele of the Hawaii Women's Law Center. "Many of us who practice in the courts feel that pressure, that gender bias. It would make sense that there would be no level (of the judicial system) that would be free of that bias."

But those on the other side of the question say the disproportionate number of women jurists getting the nudge off the bench and the seemingly skewed qualification ratings of the bar simply are coincidental.

They defend both male-dominated groups as being gender-blind and say if a problem exists, it is at the society level.

They point to other data to back their position:

» Twelve women judges have been retained by the commission since 2001, the same number as male judges.

» Four women were among the six candidates the commission forwarded to Gov. Linda Lingle for a new Intermediate Court of Appeals position. Lingle in March picked Alexa Fujise, one of the four. Fujise will be sworn in June 10.

» Twenty-eight women (counting Fujise) hold state judgeships, for 36 percent of the total, compared with 28 percent a decade ago. The percentage of women judges slightly exceeds the percentage of women -- 31 percent -- in the attorney population in Hawaii.

» The state bar last year for the first time elected a woman, Rosemary Fazio, to serve on the powerful selection commission.

Attorney Mei Nakamoto, a liaison to the commission for Hawaii Women Lawyers, said she has no reason to believe the panel is biased against women.

"I don't see any indication of gender bias," Nakamoto said.

In fact, three of the five cases involving the female jurists who weren't retained happened while University of Hawaii official Amy Agbayani, known as a strong advocate for women and minorities, was on the commission, including a year she spent as chairwoman.

Agbayani said she would like to think the commission was more sensitive to gender issues during her watch, and she believes all women jurists, those who were retained and those who weren't, got fair treatment while she was there.

Still, more needs to be done to eliminate gender bias, Agbayani and others said. "I think the commission is no worse than any other institution," she said.

Current commission members say no double standard exists.

"You have to judge each judge by the rules we have," said Fazio.

"You can't just compartmentalize this. If there was a bias, it would show up everywhere," said attorney Arthur Park, another commission member. But that isn't the case, he added.

Dale Lee, president of the bar association, said the bar is concerned about the differences in its qualification ratings and has a committee reviewing the issue at Hanabusa's request. But he believes the differences are coincidental.

"I'm absolutely clear that there is no double standard at the bar level," Lee said.

He didn't respond to a request to explain why Polak and Broderick were rated differently.

What do women judges, sitting and retired, think of the notion of gender bias in the Judiciary? Most of the ones contacted by the Star-Bulletin, including four of the five women bumped off the bench, were unwilling to discuss that and other retention issues.

Simms said the question of why mostly women have not been retained in recent years is a legitimate one to explore. "The numbers are there. That's what you have."

While Simms was the only one of the five to formally get the boot from the commission, the other jurists were told that they would not be retained and were given an opportunity to withdraw their retention applications. They did so and subsequently retired.

If current trends regarding women judges aren't enough to spark a gender debate, consider this historical fact:

Until Simms' retention was rejected, the last jurist to formally get the boot was a woman.

In September 1990, the commission denied a second term to District Judge Marilyn P. Lee.