Circuit Judge Michael Wilson’s confirmation to the state Supreme Court took an unexpected detour Thursday as the state Senate women’s caucus urged the nominee to open up his personnel file and judicial performance reviews to satisfy questions about his conduct toward women.
The unusual request was in response to the Hawaii State Bar Association’s disclosure Wednesday that its "unqualified" rating for Wilson was based in part on the propriety of his conduct toward women in professional contexts.
State Sen. Clayton Hee, chairman of the Senate Judiciary and Labor Committee, forwarded the women’s caucus request to state Supreme Court Chief Justice Mark Recktenwald and also spoke with Wilson. Hee and other sources familiar with the situation said Wilson would review the files and might be willing to disclose the information to the Senate.
Hee called a second confirmation hearing for Wilson on Saturday morning to give the nominee, the bar association and anyone else with information another chance to testify. The committee voted unanimously last week to recommend Wilson’s confirmation to the full Senate, but Hee said at the time that he would delay a Senate vote to give people with concerns about Wilson enough time to step forward.
The Senate has until Tuesday to vote on Wilson’s nomination or, under the 30-day time limit for advise and consent, he will automatically be confirmed to the state’s highest court.
Wilson could not be reached for comment. The judge’s allies, however, believe his confirmation is still on track barring what one source called a "specific and substantiated" defect in his character or ability.
Gov. Neil Abercrombie, who nominated Wilson, and Hee, whose committee has jurisdiction over the confirmation, have continued to support Wilson since the bar association’s negative rating. The Senate generally follows the guidance of the Senate Judiciary and Labor Committee on judicial nominees, but the request by the women’s caucus represents a potential crack that could cause other senators to have doubts.
"This gives everybody the opportunity everybody, including Greg Markham, the president of the bar to come forward with names and to come forward with people," Hee (D, Heeia-Laie-Waialua) told senators about the Saturday hearing. "Absent of that, it would be very difficult to change, in my opinion, the will of the committee at this time based on innuendo, allegations, insinuations and rumor."
The eight women in the Senate including Senate President Donna Mercado Kim (D, Kalihi Valley-Moanalua-Halawa) signed a memo to Hee stating that the bar association’s new testimony raises questions about Wilson that warrant further inquiry.
The female senators said the Senate should ask to review Wilson’s judiciary records, including his personnel file; any ethical, performance or conduct matters; and lawyer comments and materials gathered as part of his judicial performance reviews. The senators suggested that Wilson could disclose the information to the Senate but keep the records confidential from the public. The Senate, for example, could meet in executive session to review the records.
The female senators also said they support re-evaluating the Judicial Selection Commission’s screening process for future judicial applications. Wilson was one of six potential nominees who were screened by the Judicial Selection Commission and recommended to Abercrombie.
The women’s caucus’ request places Wilson in the difficult position of deciding whether to voluntarily disclose records that are supposed to be confidential and risk that the information might be leaked publicly or deny the request and fuel suspicions about his character.
The bar association has told the Senate that the "unqualified" rating was based on negative comments from attorneys about Wilson’s work ethic, lack of professionalism in the workplace, propriety of his conduct toward women in professional contexts, and ability to serve at the level of a Supreme Court justice.
In addition to the new testimony from the bar association, Hee also heard Thursday from a woman who claims she was treated poorly by Wilson when she worked for him when he was director of the state Department of Land and Natural Resources in the 1990s. The woman might testify at the hearing Saturday.
State Sens. Malama Solomon (D, Kaupulehu-Waimea-North Hilo) and Laura Thielen (D, Hawaii Kai-Waimanalo-Kailua) said that they take questions about Wilson’s conduct toward women very seriously.
Solomon, who serves on the Senate Judiciary and Labor Committee and voted to confirm Wilson last week, said she did so with the understanding that the committee would take up the nomination again if new evidence was presented.
"These are very serious thoughts that the women’s caucus is sharing with our fellow colleagues here on the floor," she told senators. "This is not something that we should take lightly."
The bar association has kept private the specific details that influenced the negative rating on Wilson, citing the importance of a confidential rating process that protects attorneys and their clients from possible reprisals from judges
Solomon told reporters that people are fearful especially if they are female about speaking out publicly. She also said it took a lot of courage for all eight female senators to sign the memo to Hee.
Thielen said that when she and Solomon were privately discussing the issue, Solomon had said that "if the women in the Senate can’t stand up, then we can’t expect anybody else to, as well."
"Unfortunately, you know, there’s a lot of stigma attached to this issue," Thielen said. "And I think there’s also the issue that the nominee is a sitting judge. And the reality is whether he’s confirmed or not confirmed, he’s going to remain on the bench. And so a number of attorneys who are going to be practicing in front of him are going to have other concerns outside of that arena and some of the other criteria that were listed by the bar."
Thielen, an attorney and a former president of Hawaii Women Lawyers, said she has heard some very favorable comments about Wilson, while others have raised concerns. She said she would leave it up to Hee and Wilson to determine how Wilson might respond, either in private or at the hearing.
"But I think he deserves the opportunity to respond to this as well," she said. "We should be listening to him, and he has the right to respond to it."
Thielen said "we need to be weighing things very carefully because this is the reputation and character of an individual who has a lot of positive attributes in our community."
