Little Hukóm in Aloha State
Gilbert S.C. Keith-Agaran
Wisconsin and North Carolina recently completed elections for their State Supreme Courts, with one judicial election decisively decided by the Badger state voters and the other overturned by an appellate court throwing out a lot of Tarheel votes.
Chief Justice Mark Recktenwald, who retires when he reaches the mandatory retirement age of seventy this year, recently appointed lawyer Maria Penn to the O‘ahu Family Court. I do not know Maria Penn. She is apparently not an active dues-paying member of the Hawai‘i Filipino Lawyers Association (HFLA), and I do not know her personally (she does not have a photo in the bar directory). But her appointment is an interesting footnote on the recent history of Filipino judges in Hawai‘i. If confirmed, Penn would become only the seventh full-time judge of Filipino ancestry currently serving among the seventy-eight Hawai‘i State judges. Her confirmation will bring Filipinos (or someone with some Pinoy background, acknowledged, practiced or not) to 9% of Hawai‘i’s sitting judges!
In 1990, when future Hawai‘i Supreme Court Justice Simeon Acoba was renewed for a second term as a Circuit Court Judge, only three of the then-sixty-eight Judges statewide had Filipino ancestry; the others were Hawai‘i island Circuit Court Judge Ronald Ibarra and Hawai‘i island District Court Judge Joseph Florendo (that’s 4% for those keeping score at home). Our very small cohort of youngish Filipino lawyers (we could all kinda name the practicing kababayan and our elders at that time) organized a dinner to recognize the three sitting judges, along with the recently retired federal judge Alfred Laureta. I had just passed the local bar two years earlier. Our cabal of relatively young lawyers, in retrospect, had an unstated, ulterior goal to publicize the need to increase the presence of Filipinos on the bench. Whether a dinner honoring the few Pinoy on the bench fostered any changes, a few years later, Governor John Waihe‘e did appoint Mario Ramil to the Hawai‘i Supreme Court and then elevated Simeon Acoba to the Intermediate Court of Appeals (ICA). Governor Benjamin Cayetano would later elevate Acoba to the state high court, where for several years, two Filipino jurists—Ramil and Acoba—out of five Justices would serve.
In Hawai‘i, the Judicial Selection Commission (JSC) interviews and shortlists applicants to the appointing authorities: the Chief Justice for the district court and district family court vacancies, and the Governor for Circuit Court, ICA, and Supreme Court openings. The JSC’s nine members include two picked by the Governor, one by the Chief Justice, two by the State Senate President, two by the State House Speaker, and two elected by the State Bar. The Hawai‘i Constitution limits the number of licensed lawyers who can sit on the JSC to no more than four so at one time, when the JSC had filled its quota of attorney members, a retired judge actually gave up his license (a legal loophole, of course) so he could sit as a non-lawyer, regular joe citizen. The lower trial courts (family and district) serve six-year terms while the Circuit and appellate courts have ten-year terms (with a mandatory retirement age of seventy years old). Judges at all levels are subject to State Senate confirmation upon their initial appointment.
For some of my legislative colleagues (also lawyers), I took the lead some years back in raising the debate on whether we should consider electing judges. In part, it was a warning shot across the bow to activist jurists to stay in their own lane—if unelected judges wanted to pass laws or infringe on the legislative power of the purse, they should run for office. The entire elite, entitled and privileged community (legal, academic and their business cronies) came down pretty hard against the effort—after all, leaving the selection of judges to Hawai‘i voters sounds like a pretty bad (even dangerous) idea when you start from the premise voters are an uninformed, easily influenced, self-interested mob who are likely to elect unqualified and, gasp, politically motivated people to the bench. They also argued the Hawai‘i JSC had done a magnificent job in improving the level of jurists on the Hawai‘i courts—something well-informed people nevertheless still question to this day regarding the so-called merit selection process. Some even came up with the notion that because six of the members are appointed by elected officials, the JSC represents the public in considering which judicial candidates are worthy—just another aspect of republican (small R) representative democracy. Regardless, it’s hard to argue against such religious fervor among the Hawai‘i ruling class against letting regular people weigh in on picking members of that legal priesthood, and not worth pushing it just to send an obvious political message, especially since a primary objection seemed to be against a proposal to revise calculation of their generous state retirement pay.
Some also argued the bench is a meritocracy—appointments are based on qualifications, not background or popularity, unlike legislators and other elected officials who can run without regard to their education or ignorance, training or abilities, honesty or integrity. Of course, this turn to meritocracy skips over the unspoken networks of advantage influencing judicial selection. It ignores structural barriers: the lack of mentorship, pipeline challenges, unequal access to elite education, and unconscious bias in recruitment and recommendation,s which historically sidelined working-class communities.
I once asked a Filipino lawyer I know why seek just a district court appointment after a fairly long career at the public defender’s office. That lawyer reported being told the then-Governor (a non-lawyer) and the folks advising on judicial appointments favored people with some kind of judicial experience for the Circuit or appellate bench, unless the candidate also had experience or connections with the larger Bishop Street and downtown law firms. The same notion occurred to another Filipino friend, a respected lawyer who was a partner at a major law firm as well as capably serving high-level appointments in important public legal roles at State and City agencies; I assumed that lawyer would someday get a circuit or appellate seat.
In all fairness, the JSC is a little more transparent in its process than it used to be—it now discloses the number of applicants for a vacancy and the range of their backgrounds; for appellate openings, JSC now discloses the names of the applicants.
But electing judges is not a strange idea. At one time, most states elected some or all their judges, with residents jealously protective of their right to vote for jurists like any other of their government leaders. Today, roughly half of the States still elect judges and half appoint some or all of them. Thirty-one States, including Hawai‘i, use “commissions” to aid the governor (and the Chief Justice in Hawai‘i) in selecting judges. In four States, the governor retains the sole authority to pick judges without using a nominating committee (conditioned on legislative confirmation). Partisan elections are held to select some or all judges in twenty-one. Nonpartisan elections are held to select some or all judges in twenty States. One-half of the States hold elections for State supreme court judges (or elections approving additional terms). Seventeen States that have intermediate appellate courts elect judges to those courts.
Since Acoba retired (Acoba remains the only Filipino to ever serve as an ICA Judge), no Filipino has sat on either appellate court. At one time, a Filipino sat in each of the four Circuit Courts—now there are only the two on Kaua‘i (and both may be leaving the bench soon) and two on O‘ahu. The current Governor passed on picking Filipinos for recent openings on Maui or Hawai‘i Island and additional openings on O‘ahu. In the thirty-five years following that dinner for the three judges, the number of licensed Filipino lawyers has grown, and we have successfully doubled the number of sitting judges to six!
So it is quite understandable HFLA (and Filipino community organizations that partnered with us as well) have generally sat back and watched the lack of continued growth and even erosion of Filipino judges over the last two decades. The most recent selections by Governor Josh Green and Chief Justice Mark Recktenwald extended the mounting underrepresentation of the Filipino community in the state courts.
Perhaps the broader pattern of no representation remains more concerning in the higher courts. Despite strong Filipino candidates making the short list for recent vacancies in the appellate and circuit courts, Gov. Green picked others. The governor’s three most recent appointments to the circuit and appellate courts, while commendable for furthering gender representation, did not include a single judge of Filipino ancestry.
There are only two Filipina judges out of twenty-three on the First Circuit Court (O‘ahu). Gov. Green also earlier appointed a woman of part-Hawaiian ancestry for the Circuit Court opening on Hawai‘i island. While this is good news for women and the Hawaiian community, Hawai‘i Island has not had a Filipino jurist since the retirement of Judge Ronald Ibarra. In short, Gov. Green has omitted Filipinos in his nine Circuit Court appointments (Michelle Drewyer on Maui; Kauanoe A.D. Jackson on Hawai‘i island; Rebecca Copeland, Brian Costa, Dyan Medeiros, Steven Nichols, Jordan J. Kimura, Taryn Tomasa Gifford, and Karin L. Holma on O‘ahu).
Gov. Green also passed on appointing a Filipino (Lance Collins) as Chief Judge of the ICA, elevating a sitting ICA Judge to the post. Gov. Green has not appointed a Filipino for the two ICA (Kimberly T. Guidry and Karen T. Nakasone) and two Supreme Court picks (Vladimir P. Devens and Lisa M. Ginoza). In his first twenty-nine months, Gov. Green has selected no Filipinos for the thirteen vacancies he has taken up.
The trend is nothing new in the fifteen years since Linda Lingle (2002–2010) and Ben Cayetano (1994–2002) left the fifth floor. Governor David Ige (2014–2022) picked two Filipinos over his eight years in filling eighteen Circuit Court vacancies and six appellate court openings, including one Supreme Court seat. Gov. Ige passed on appointing the late judge Darolyn Lendio Heim or University of Hawai‘i professor David Forman for a 2020 ICA vacancy. Governor Neil Abercrombie (2010–2014) appointed no Filipinos in considering six Circuit Court openings and three Supreme Court vacancies in his one four-year term.
By elevating Associate Judge Nakasone to Chief Judge of the ICA, Gov. Green will have an opportunity to fill her vacated seat. In the next year, Gov. Green will have the opportunity to name a new Chief Justice from a JSC short list. If he picks a sitting Associate Justice or an ICA Judge, there will be another appellate court vacancy. A number of sitting jurists have terms ending in the next year or may be approaching the mandatory retirement age. With the expected hike in salary (and the connected hike in retirement pay) effective in the next fiscal year, some jurists may delay leaving the bench.
As for the lower courts (District and Family Court), Chief Justice Recktenwald (who is retiring due to the mandatory age limit) recently filled one of four vacancies with a Filipina. The Chief Justice, who has served since being Lingle’s second choice to head the Judiciary (the State Senate opposed the initial pick), has been very responsive in trying to expand the demographic backgrounds of the district and family court bench (and quite a number of his lower court appointees have then been elevated to the Circuit Courts by the various Governors who have served during his years leading the third branch).
But in probably his last shot at appointing judges, while well-qualified Filipino candidates made the short list for all four vacancies, the Chief Justice only appointed Penn to an O‘ahu Family Court opening. Do not get me wrong. Penn’s appointment is a great thing. If Penn is confirmed, she would only be the second Filipino judge out of eleven in the Family Court. Notably, there are no Filipino judges among the fourteen District Court judges on O‘ahu.
For you, keeping count at home—of the seventy-eight full-time judges in Hawai‘i, only six (7.6%) are of Filipino ancestry—even though Filipinos make up nearly 25% of the state’s population. Since Justice Acoba retired, no Filipino has served on the appellate courts in over a decade.
Filipinos have long formed the backbone of Hawai‘i’s labor force, from sugar plantations to our role in every type of health care profession, to positions in our hotels, restaurants, schools, and unions. But the numbers certainly lag in elite areas of decision making—particularly the Hawai‘i judiciary. The bench, despite progress in gender and some ethnic representation (strongly and astutely expressed by their advocates), continues to elude the Filipino community.
And less you think I’m revisiting the judicial election trope, electing judges would only marginally help—currently there are ten Filipinos in the fifty-one member House of Representatives (19.6%) and six in the twenty-five-member State Senate (24%) in elections held in portions of the various islands and communities. By island (if elections were held for each of the four circuits), there is one Filipina Rep. on Maui, six Reps. and four Sens. on O‘ahu, one Rep.. and two Sens. on Hawai‘i island, and no Pinoy legislators on Kaua‘i. If Judges were elected statewide, there would be none based on no Filipino nahalal na opisyal serving in the statewide offices of Governor, Lt. Governor, and the entire Congressional delegation since Gov. Cayetano left office.
This is about more than head counts. The Filipino experiences in Hawai‘i—contracted as plantation workers recruited from what was an American colony and later arriving as immigrants after the United States cut its Philippine colony off as a dependent, independent country working a system limiting the number of brown-skinned entries, and growing through the generational changes Filipinos born and raised or who have more recently settled here—shape our interaction and view of the Americanized legal system. Filipino legal challenges ranging from labor rights to immigration, domestic violence, language access, and educational opportunity demand what one local academic described as “culturally informed judicial perspectives.”
Representation certainly does not guarantee outcomes. But representation signals to people that the Courts certainly include their community, and decisions perhaps will reflect shared insights and perspectives of their particular group.
In its recent statement supporting Diversity, Chief Justice Recktenwald issued a news release stating, “Our goal is to maintain a judiciary that has the most qualified judges and staff, who reflect the community they serve. This fosters an environment where persons from all backgrounds know their voices will be heard and their disputes will be resolved fairly.”
As discussed among HFLA members recently it is not merely a matter of ethnic pride or symbolic inclusion—exclusion raises serious questions about equity, public confidence and the legitimacy of our institutions.
Our State Courts play a powerful, often outsized, and important role in our government and community. The judiciary holds the essential job of determining disputes and protecting the rights and liberties of all members of this community.
Many in the public do not understand what happens in a court. Nor do they understand the value of lawyers and the structure our judicial system provides our society by giving people a right to be heard and a process they understand to be fair. Frankly, it is no small miracle that two parties in conflict can go to court, explain their views of a dispute, listen to a judge’s decision, and then almost always do what the judge orders. If it were not for a broad, agreed upon sense of justice and deference to the court’s place in our society, I’m not sure that would happen. Lawyers and judges basically are, and certainly should be, in the business of building a just society, and that begins by reflecting in its priesthood the make-up of the community.
Please keep in mind our attempts at justice—whether as a community, lawmakers, or as jurists—are often imperfect. That is to be expected because people, like the institutions they comprise and implement, are absolutely imperfect. In short, the legislature was and is imperfect, and believe it or not, so are the courts. But then, shortcomings and imperfections are the indicators making justice a serious, ongoing work in progress, carried out by many people, perhaps over generations and certainly beyond a judge’s six-year or ten-year term.
The system will not change on its own. The bar association asserts the judiciary reflects the ethnic make-up of the Hawai‘i State Bar Association—it’s just tough luck if the folks pulled into the legal system do not reflect the bar membership. The JSC, governor, chief justice, and legal and community institutions must actively identify and support the appointment of Filipinos to the judiciary.
Gilbert S.C. Keith-Agaran practices law in Wailuku. He previously served in the legislature where he chaired the judiciary committees in both the State House and Senate. Alfredo G. Evangelista contributed to this column.
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