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Katherine Leonard needs 12 out of 23 votes to become Hawaii’s next chief justice.

As of late Thursday, she could only count on three — from the Senate’s only Republicans, Sam Slom and Fred Hemmings, and Democrat Josh Green.

At least three other senators — Brian Taniguchi, Dwight Takamine and Clarence Nishihara of the Senate Committee on Judiciary and Government Operations — oppose Leonard’s nomination. Senate Vice President Russell Kokubun is on their side, with “grave concerns.”

Judiciary committee member Mike Gabbard voted against Leonard Thursday, but with reservations. Gabbard — a Republican-turned-Democrat — said Thursday he was leaning toward confirming the nominee following the overwhelming testimony in her favor, but wanted more time before casting his final vote.

Taniguchi, chairman of the judiciary committee, told reporters Thursday he did not know how other senators would vote.

But Nishihara told Civil Beat, “My guess is she will not be confirmed. I did not poll everybody. But the full-court press that Judge Leonard and the governor are making will probably not be successful.”

Slom, the lone Republican on the judiciary committee, admitted, “If they want to go against her, they have the votes. The caucus decides behind closed doors.”

Gov. Linda Lingle‘s nomination of Leonard, 50, to replace the retiring Chief Justice Ronald Moon is the most important to come before the state Senate in years. It’s politically charged because Lingle is on her way out and because she picked someone who would be both the first woman chief justice and the first member of the court to be a graduate of the University of Hawaii law school.

Senators say they are taking extra care to make sure they have the right candidate to run the state’s third branch of government.

Leonard, it seems, is not that person.

“She was questioned extensively, and I talked to her with three other senators (Wednesday) for about an hour and a half,” said Nishihara. “What I came away with is, number one, I don’t doubt the sincerity that she will do the best job she can. I don’t doubt she works hard, or her skills as a writer or her legal opinions. Those qualities work for an (Intermediate Court of Appeals) judge. But I don’t think she has the intangible qualities for someone who can lead a department.”

In explaining their reservations about Leonard, several senators pointed to a Legislative Reference Bureau Aug. 3 that detailed the statutory functions and duties of the chief justice that are different from all other justices or judges.

Those duties include selecting a member of the Judicial Selection Commission, assigning judges to temporarily serve on other courts, submitting the judicial branch’s budget to the Legislature, setting the hours of judiciary operations, administering and enforcing the ethics of judiciary elected officers and public employees, participating in collective bargaining with unionized work units, and dozens of other responsibilities.

“A lot of senators have a lot deep concerns that she is not qualified to do that,” said a Senate leader whom Civil Beat granted anonymity. The person wouldn’t otherwise share the private conversations among Democrats, which provide valuable insight into Friday’s vote. “You never know how a vote will go, but it’s looking like a strong ‘no’ vote.”

It’s not just senators that doubt Leonard’s abilities to serve effectively as “CJ.”

Five female representatives in the state House, all Democrats, Aug. 3, arguing that the “firsts” that a Leonard confirmation would bring to the high court paled in significance to other considerations.

“The selection of the next Chief Justice of the Hawaii Supreme Court will shape not only the future of Hawaii’s, third and co-equal branch of government, but will also have an impact on the values that define us as Hawaii, and, as in the past, these values have become an important part of Hawaii’s legal history,” wrote Reps. Della Au-Bellati, Lyla Berg, Mele Carroll, Marilyn Lee and Hermina Morita. “Therefore, the qualifications of the nominee cannot and should not be focused on these kinds of ‘firsts’ but a broader spectrum of administrative and leadership skills and personal conviction to take on this monumental task.”

The 25-member Senate currently has only 23 members. Former Sens. Bobby Bunda (Senate president emeritus) and Gary Hooser (the majority leader), resigned from office last month to seek higher office.

Seven senators are women, including Senate President Colleen Hanabusa. If confirmed, Leonard would be only the third woman to sit on the high court.

Five are lawyers — Slom, Hanabusa, Taniguchi, Takamine and Carol Fukunaga. Like Leonard, the four Democrats are graduates of the William H. Richardson School of Law.

Senate Precedent

The Senate has not always embraced the judiciary committee’s opinions.

In 2007, Honolulu Deputy Prosecutor Glenn Kim was voted down 3-2 by the committee as a judge for the 1st Circuit Court, but he then passed the Senate 16-8.

In early 2010, the committee deadlocked 3-3 on the nomination of former U.S. Attorney Ed Kubo to the 1st Circuit Court. But Kubo was confirmed by the Senate 24-1, including by Tanighuci, who reversed his own committee vote. Democrat Les Ihara was the lone dissenter.

What Other Senators Said

Of the state senators who could be reached by Civil Beat, here is what they had to say about the Leonard nomination:

Russell Kokubun, Vice President
“I have grave concerns. I think the issue really becomes whether or not she has the capabilities to lead the third branch of government…My concerns really go to the issue of whether or not she has the experience to do that. I’m not questioning her intelligence as an attorney or her capabilities. I think she’s served, for the length of time she’s served, she’s done well. But I think that’s a quantum leap to go from being a judge at that level to being the chief justice. That’s an extremely important position. My inclination is to support the chair of the Judiciary Committee, which aligns with my position, which is to not advise consent.”

Fred Hemmings, Minority Leader
“She’s, in all aspects of consideration, eminently qualified, including judicial record and abilities as judge, as demonstrated by the level of opinions she’s written. Her abilities have been demonstrated, but more importantly, none of her predecessors had any demonstrated ability in sense of running large organizations. It’s very hypocritical… The Legislature, Senate and House passed a resolution this session that asked for more women to be appointed to the judicial branch. Here’s a chance to appoint a woman to a historic position, and trying to deny her appointment is quite hypocritical. She has my vote.”

Suzanne Chun Oakland, Majority Whip
“I was supportive of her as an Intermediate Court of Appeals judge, and I didn’t hear all what is percolating up to us now. That does make me quite concerned if she is to head the judiciary. So, I am still contacting a number of people in the legal community that have worked with her, because I don’t know that part of her. I don’t work with her on a regular basis. I am not sure how I will vote. I was leaning one way, but I’d rather talk with the nominee again.”

Josh Green
“Judge Leonard appears to be qualified, has good experience and is supported by most of her peers. Publicly, I refuse to acknowledge whispers and anonymous rumors. I will vote yes to confirm.”

David Ige, Majority Technology Leader
An aide told Civil Beat: “He’s still reviewing all the testimony; he hasn’t made up his mind yet.”

Les Ihara, Majority Policy Leader
“I have concerns about whether she is qualified to be the CEO of the judiciary branch of government. I have not made a final decision how to vote.”

Rosalyn Baker
An aide said, “I don’t think you’re going to get the senator to talk. You’ll find out when she votes tomorrow.”

Senators Who Did Not Respond

They are all Democrats: Hanabusa, Fukunaga, Brickwood Galuteria, Clayton Hee, Jill Tokuda, Michelle Kidani, Shan Tsutsui, Norman Sakamoto and Will Espero.

Aides said Donna Mercado Kim was out of office Thursday and not checking messages, while Kalani English was out of state and would not be present for Friday’s vote.