The state Senate is expected to vote Monday on the confirmation of Circuit Judge Michael Wilson to the state Supreme Court after the nominee emerged from a second confirmation hearing on Saturday unscathed.
No new evidence that could undermine Wilson’s character or ability was revealed during the 51⁄2-hour hearing before the Senate Judiciary and Labor Committee. No confrontation over the release of Wilson’s personnel file and judicial performance reviews materialized after Wilson voluntarily disclosed his personnel file to the committee and legal experts questioned whether he could legally turn over his judicial performance reviews.
Sen. Clayton Hee, the committee chairman, said the committee would stand by its unanimous vote earlier this month to recommend Wilson’s confirmation. The full Senate has scheduled a vote on Monday, one day before the end of the Senate’s 30-day time limit for advise and consent.
"I think that you have been maligned," Hee (D, Heeia-Laie-Waialua) told Wilson. "I think you have been mistreated. I think you have been unfairly judged by your peers as a member of the bar association."
Wilson, who was nominated by Gov. Neil Abercrombie, would not comment to reporters afterward other than to say he was grateful for the committee’s time and patience.
A second hearing was called after the Hawaii State Bar Association explained that its "unqualified" rating on Wilson was based on negative comments by attorneys about his work ethic, professionalism, propriety of conduct toward women in professional contexts, and ability to serve at the level of a Supreme Court justice.
The Senate women’s caucus had urged Wilson to disclose his personnel file and judicial performance reviews to help answer questions about his conduct toward women.
A woman also came forward to complain she was treated poorly by Wilson when he was director of the state Department of Land and Natural Resources in the 1990s.
Like at the first hearing this month, the room was dominated by Wilson’s friends and colleagues, who vouched for his character and legal ability and were baffled by claims that he might have behaved badly toward women.
But Sens. Laura Thielen (D, Hawaii Kai-Waimanalo-Kailua) and Michelle Kidani (D, Mililani-Waikele-Kunia) said they had been contacted privately by women with concerns about Wilson’s conduct.
In the most intense moments of the hearing, Thielen asked Wilson directly whether he had ever been accused of threatening or abusing a woman, whether he had ever had a restraining order filed against him, and whether he had ever been counseled by a judge for his treatment of women in court.
To each question, Wilson replied with an emphatic "No."
When Thielen asked Wilson whether he had been counseled as a judge about inappropriately looking at women’s bodies, the audience erupted in disapproving groans. Hee initially stopped the question, then allowed Thielen to continue, saying it "has a good reflection on the requestor."
"No," Wilson replied.
Thielen later told Wilson she felt obligated to ask the tough questions because of the information she had been given confidentially. She said she felt that to "weigh their veracity, I had to hear your side as well."
Kidani defended the need for a second hearing.
"Any plea for help, whether in the dark or the light, I believe it is our job to look at it," she said.
THE DRAMA over Wilson’s confirmation revealed what many senators, attorneys and judges believe are flaws in the screening process for judicial nominees. The Judicial Selection Commission, which vets applications and makes recommendations to the governor, and the bar association, which rates nominees, rely in part on confidentiality that is intended to protect both the nominees and the people who come forward with negative assessments.
James Duffy Jr., a retired state Supreme Court associate justice who supports Wilson, told senators that there is a need to protect people who provide candid information. But he said that if the process is not improved, the result is "character assassination without any basis to rebut the allegations that are made against you, because you don’t know about them in time to make any adequate rebuttal presentation."
Wilson’s allies complained that they have been fighting against what they see as rumor and innuendo.
"Those of us who have been supporting Judge Wilson have had the feeling for the last week or so that we are chasing shadows and wrestling with ghosts," said Chris Yuen, a former Hawaii County planning director.
Nancie Caraway, Abercrombie’s wife, the state’s first lady and a feminist scholar, said she has known Wilson for years and had never seen him disrespectful to women "intellectually, physically, sexually, any other way."
Former Gov. Ben Cayetano, who appointed Wilson as the DLNR director and state consumer advocate, and Cayetano’s wife, Vicky, vouched for Wilson’s character.
In a story that perhaps inadvertently revealed the nature of Hawaii politics, Cayetano said he did not appoint Wilson to a second term as DLNR director because Wilson lacked the votes in the Senate for confirmation. Cayetano said Wilson had paid the penalty for moving to fire the brother-in-law of a state senator allegedly caught poaching.
The former governor said the story was an example of Wilson’s integrity and courage.
While Cayetano did not mention the senator by name, Sen. Malama Solomon (D, Kaupulehu-Waimea-North Hilo), who now serves on the Senate Judiciary and Labor Committee, volunteered that it was her brother-in-law.
Christina Meller, a former trails manager at the DLNR under Wilson, told senators that she was moved out of her job and back to the state Office of Planning after she contradicted Wilson during testimony before the Legislature. She said she never actually spoke to Wilson about the incident and was let go by her supervisor.
Michael Buck, Meller’s DLNR supervisor at the time, explained to senators that it was his decision to replace Meller with someone he felt was better qualified, not Wilson’s.
Former state Sen. Matt Matsunaga, who led the Senate Judiciary Committee when Wilson went through his first confirmation for circuit judge in 2000, shed light on suggestions that Wilson might have harassed a Miss Universe contestant when the pageant was held in Honolulu in 1998. Matsunaga said the woman — Wendy Fitzwilliam, Miss Trinidad and Tobago, the eventual winner — informed the Senate that Wilson had not acted inappropriately.
Senators had to balance the on-the-record testimony about Wilson with the confidential comments about his character and work ethic.
Gregory Markham, president-elect of the bar association, again declined to give senators specific details that led to the bar’s negative rating. But Markham said attorneys on the bar’s board of directors would not have given weight to rumor and innuendo.
Markham said the bar considered the negative comments about Wilson valid. He also said nominees do not have the same due process rights during the bar’s review process as they would have in court.
Pressed by senators on why more details have not been made public, Markham said: "Senator, no one wants to become the next Anita Hill."
Anita Hill, an attorney, famously claimed during Clarence Thomas’ confirmation to the U.S. Supreme Court in 1991 that Thomas had sexually harassed her. Thomas was confirmed by the U.S. Senate and still serves on the court.
Susan Arnett, a deputy public defender, said she was "floored" by suggestions that Wilson had acted inappropriately toward women in professional settings. She said she has never heard such complaints about Wilson. She said she hoped senators would not make a decision based on negative comments from people who would not come forward publicly.
"We have to be willing to speak up," Arnett said. "And I am dismayed that in 2014 there may be women in my profession who don’t have the gumption."