HAWAII Associate Justice Steven Levinson's surprise decision to retire more than three years before the end of his term provides Gov. Linda Lingle an opportunity to achieve a majority on the state Supreme Court. It means that, for two years, Republicans will be in control of two of the state's three branches of government—an improbable and perhaps fleeting occurrence.

Levinson, arguably the high court's most liberal member, said this week he is retiring at age 62 because “;my batteries need recharging.”; Chief Justice Ronald Moon is to turn 70, the mandatory retirement age, four months before Lingle reaches the end of her second and final term.

Democrats tried to prevent Lingle from replacing Moon two years ago when voters rejected a constitutional amendment to eliminate the judges' retirement law. Ratification of the amendment would have enabled Moon to stay on the bench until a Democrat moved into Washington Place. Levinson's decision is a blow to the Democratic Party.

Levinson, the longest-serving justice on the five-member panel, has written 229 rulings since his appointment to the Supreme Court in 1989 by Gov. John Waihee. Most notably, he wrote the decision in 1993 that put Hawaii on the brink of becoming the first state to recognize same-sex marriages. Five years later, Hawaii voters ratified a constitutional amendment that negated the ruling.

The Hawaii Supreme Court's decision was widely acclaimed and deplored. It was followed by a nationwide movement that led to legalization of same-sex marriages in Massachusetts, California and Connecticut.

Levinson's notification of retirement will trigger the state Judicial Selection Commission to advertise for applicants to fill the job opening. The commission is comprised of nine members, two each named by the governor, House leadership, Senate leadership and the Hawaii Bar Association and one by the chief justice.

The commission should be hard-pressed to include a lawyer or two with a conservative or moderate legal philosophy among the four to six names it will submit to Lingle. A logical choice would be one of the four judges she has appointed to the six-judge Intermediate Court of Appeals.

The only Lingle appointee now sitting on the Supreme Court is James E. Duffy Jr., 62. If Lingle wants to leave a lasting legacy on the high court upon the departure of Levinson and Moon, she can be expected to follow the lead of Presidents Bush I and II in choosing younger appointees: Chief Justice John G. Roberts Jr. was 50 when George W. Bush nominated him for the position; Associate Justice Samuel Alito was 55; while David Souter was 51 and Clarence Thomas was 43 when they were nominated as associate justices by Bush's father.

The question is whether the Democrat-controlled commission will want to appease a Republican governor.