THE STATE OF ALOHA
Itwas around 2 in the morning when “the opihi” suddenly died. James Wakatsuki got his nickname for sticking to his guns in the face of overwhelming opposition and howling dissent. He was among that near mythic generation of Japanese Americans in Hawai‘i, who grew up in the middle of the territorial years, served honorably in World War II and committed himself to public service in the islands.
He went to college and law school on the Mainland thanks to the GI Bill. He came home, joined the Democratic Party and started his law practice in Kalihi. Then he got into politics. By 1975, he was the speaker of the state House of Representatives.
But that was not where he was working when he died of liver failure. In 1992, Justice Wakatsuki was an associate justice on the Hawai‘i Supreme Court. He was a stalwart guardian of civil liberties and fiercely independent. He was also the last of his generation to serve on that court.
His death meant that Gov. John Waihee would get to appoint all five justices to the highest court in the islands. Appointing judges hasn’t changed much since 1978. The Hawai‘i Constitution requires an agency called the Judicial Selection Commission to produce a list of candidates and send it to the governor. From that list, the governor chooses the nominee subject to Senate confirmation.
Gov. Waihee’s first pick for the job rocked Hawai‘i’s tight-knit legal community. Sharon Himeno didn’t apply for the position. Someone nominated her to the commission, and the commission put her on the list of candidates to the governor.
She and the governor wanted a smooth confirmation. She told the press she hoped Hawai‘i was “at the stage where any applicant is judged on his or her own qualifications, and not who they are married to.” Her husband, you see, was Warren Price, the governor’s former attorney general. Himeno’s hopes were dashed. The backlash was swift and unforgiving. In an editorial, environmental lawyer David Kimo Frankel asked this:
“What has this wealthy attorney done for the poor, women, Native Hawaiians, workers or the environment? She was not one of the hundreds of attorneys who were honored for their free legal services to the needy in 1991. Himeno’s legal career demonstrates that she cares more about the rights of powerful vested interests.”
He also wrote that Himeno’s father was a real estate developer who had profited from dealings with the state. His company, for example, sold the state’s Employees Retirement System a property for $26 million after he had purchased it for $23 million. And, wrote Frankel, Himeno’s law firm represented the ERS in other land deals.
Himeno had her backers, too. Lawyers were writing letters to newspapers in the weeks that followed. Former Senate Judiciary Committee Chairperson Clayton Hee wrote about her humility, her legal qualities, tolerance and “love for our land and its people.”
She also had the public support of labor unions, former Gov. William Quinn and attorneys from some of the biggest and most prestigious firms in Honolulu. Those in her camp correctly pointed out that this nomination would make her the first woman on the court since Rhoda Lewis retired in 1967, and argued that the backlash was a setback for women attorneys.
Those opposing the nomination, however, were just as impressive. Civil rights attorney Dan Foley, Congresswoman Pasty Mink, and retired justice and labor lawyer, Ed Nakamura, came out publicly against the nomination.
It all came to a head when she appeared before the Senate Judiciary Committee. Some cried foul, claiming that the hearing was rushed and the chairperson, a Himeno supporter, was absent because he couldn’t attend. It didn’t matter in the end though. The majority on the committee voted against her. She would not make it through the Senate. This kind of thing just didn’t happen in Hawai‘i politics, where people strove for consensus and avoided confrontation.
Gov. Waihee regrouped. About a month after the Senate rejection, he appointed another woman. Paula Nakayama was a trial judge with a solid reputation. Before that she was a partner in a reputable firm and was a Honolulu prosecutor.
Her nomination and confirmation were smooth in contrast to Himeno. Justice Nakayama has served on the Hawai‘i Supreme Court ever since. She led the court on important decisions emphasizing Hawai‘i’s commitment to the public trust doctrine and preservation of water and natural resources. Her writing is clear, crisp and provides some much-needed guidance for judges and lawyers.
It’s been nearly three decades since the Himeno nomination divided lawyers, prompted vicious letter-writing campaigns and served as a preview to our fractured political times — even in Hawai‘i.
Now, the current governor is expected to pick two justices in the coming year. Time will tell if the specter of the Himeno nomination will haunt us. Ben Lowenthal is a trial and appellate lawyer, currently with the Office of the Public Defender, who grew up on Maui. His email is 808stateofaloha@gmail.com.