Hearings last week on the appointment of Dan Glucks to the Intermediate Court of Appeals renewed the debate on the diversity of the Hawaiian judiciary.
Men are still far more common in the courts than women, and Governor David Ige’s appointments gave men a strong preference. Others point out that the pool of potential candidates is heavily male-centered, including the total number of attorneys and those running for justice.
“There is still a way to appoint qualified women to fill legal positions and balance the bank,” said Nicole Altman, president of Hawaii Women Lawyers. The organization works for women in the legal profession.
Gluck was the lonely white man on a candidate list with four women, one of whom is a judge.
His nomination on July 27 met with rare, open opposition from attorneys and others expressing concerns about Gluck’s qualifications compared to the female candidates. Many also raised the issue of gender balance in Hawaiian courts and the racial makeup of the government in general.
All of these factors came to a head on July 29 when the Senate rejected Gluck’s appointment, even after urging the governor to withdraw his nomination. Gluck, the director of the state ethics committee and staunch defender of civil rights in Hawaii, said in a statement shortly after the vote that “each of us has a duty to do more to correct historical injustices.”
But there are no easy answers on how to do this, particularly as regards the composition of the courts and representation in the legal field.
Some have pointed to issues such as access to childcare for women that could be resolved with better access and better resources. Others have said that there are deeper ingrained problems such as the implicit bias of those interviewing and selecting candidates for justice.
Ige appoint more men
The governor appoints justices to the state Supreme Court, Intermediate Court of Appeals, and four district courts. The chairman of the Hawaii Supreme Court makes appointments to the lower courts, including the county and family courts.
As of 2015, 72% of Ige’s legal officers were men, while only 28% were women. During the same period, 60% of the court representatives of Supreme Judge Recktenwald were women, while around 39% were men.
Ige even appointed two men twice. He appointed Associate Justice Todd Eddins to the First Circuit Court in 2017 and promoted him to the Supreme Court last year. In 2017, Ige also selected his campaign manager Keith Hiraoka for a seat in the district court before appointing him to a vacant position on the Court of Appeals in 2018.
The governor must now select a new candidate for the ICA from a list sent by the Judicial Selection Commission, a committee of nine that evaluates applicants for vacant judicial positions.
“For each vacancy, I choose the person who I believe will serve the community best, regardless of gender or ethnic background,” Ige said in a written statement in response to questions about his judicial selection.
The selection of Ige’s courts usually comes from a mix of acting judges in the lower courts and lawyers from the public and private sectors.
Most of Recktenwald’s judicial employees come from the private sector.
Ronette Kawakami, assistant dean of the William S. Richardson School of Law, said more lawyers could be selected from the private sector for practical reasons.
Public defenders and assistant prosecutors, who are often involved in criminal matters, may face self-retirement when they sit before a district court that frequently deals with criminal matters. If one judge was sitting out cases, the other district court judges would be a greater burden, Kawakami said.
Lawyers who want to become judges are confronted with lengthy application and job interviews. After applying, they must also clear the Judicial Selection Commission. The commission limits applicants to a list of finalists to be presented to the governor or the chief judge.
Male applicants outnumber female applicants
One possible explanation for the skewed numbers is that men are far more likely than women to apply for jobs in the judiciary. The lists of the finalists are also mostly men.
Women made up only 13% of the finalists sent to Ige for testing. The governor has encouraged more women to apply for vacancies.
Kawakami from UH Law School also wants to see more women in judicial applicant pools.
“Women have to apply more,” said Kawakami. “You have to see yourself as someone worthy to be a judge.”
Although more women have been appointed as judges in recent years, the numbers still do not reflect the Hawaiian population, who are 50.1% male and 49.9% female. The judicial divide reflects the gender divide among lawyers as a whole.
According to the Hawaii State Bar Association, 62.9% of the 2,700 active lawyers in the state are men. Women make up only 37%.
Marti Townsend, an attorney and director of the Sierra Club of Hawaii, said there was no good reason for such a loophole.
“There is nothing inherent in legal practice that makes it any less attractive to women,” Townsend said. “The challenges that many women unfortunately face are the same challenges they face in all sorts of areas.”
Men outweigh women in all courts. Of the 75 full-time state judges who work at all courts, 41 are men. In the district courts that handle criminal offenses and run jury courts, men outnumber women.
However, the division is more even with the district courts, which tend to handle lower-level cases. There are more women in the district courts in Oahu and the Big Island.
Kawakami agrees that the challenges women face in the legal field are not confined to work. She points out that women tend to do more housework and other family responsibilities. Others have said it leaves less time to participate in non-work activities that interviewers like to see on résumés.
“You have to have someone who can really juggle anything while a man doesn’t have to,” said Kawakami.
Women may also be questioned more than men during the interview process or choose not to try again after being passed over.
“You work super hard and you excel, then someone can do it and he’s not as qualified as you. And he happens to be a man. Why should you apply next time? ”She said.
Is the judiciary diverse?
A 2016 study by the American Constitutional Society found that Hawaii has one of the most diverse judicial agencies in the country.
Data from the state bar association suggests there are fewer white judges and more Hawaiian judges than there were a decade ago.
Of the 99 day and full-time judges in 2021, 21 are Japanese, 20 are white, 16 are Hawaiian or partially Hawaiian, two are of Korean background, and six are Filipino American, according to a report from the Attorney General’s Association. There was only one Pacific Islander and six judges were listed as “others”.
The data of the Bar Association are, however, provided with a reservation. Every year some judges refuse to answer a question about their race and ethnicity at their annual renewal. In 2021, a quarter of the judges who are members of the association rejected this question.
According to written statements from the Sierra Club and other organizations commenting on Gluck’s appointment, Ige has nominated mostly white and Asian candidates for vacant judicial positions, accounting for about 71% of his appointments. Half of Recktenwald’s appointments were white or Asian, and a quarter were Hawaiian.
Altman, president of Hawaii Women Lawyers, looks forward to participating in a legislative-backed committee examining how judges are selected.
“This committee will look at the overall process and make recommendations, in part to create a more diversified bank,” said Altman.
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