������Ƶ

Gov. Josh Green in the next two weeks is expected to name two new justices to fill vacant seats on Hawaii’s five-person Supreme Court, choices likely to define the court’s direction for years, if not decades.

Green also is expected to have another seat to fill after Chief Justice Mark Recktenwald must retire in 2025, which will allow the first-term governor to have filled three of the court’s five seats before the end of his term.

For now Green has six nominees from which to choose for the current openings, all put forward by the Hawaii Judicial Selection Commission, a panel of lawyers and other professionals appointed by the governor, legislators and Hawaii State Bar Association.

The commission’s nominees include appellate and lower court judges, as well as one politically prominent lawyer who’s never worked as a judge.

Under the Hawaii State Constitution, the qualifications for appointment as Supreme Court justices are scant: justices must be citizens of the U.S. and Hawaii and must have been licensed to practice law in Hawaii for at least 10 years at the time of nomination. Justices age out at 70 and must step down.

In practice, there are other qualifications. Criteria such as gender, ethnicity and life experience, as well as appellate experience, played a big role during recent Senate confirmation hearings.

The selection commission makes public almost no information about the nominees or its selection process. In an interview, the commission’s vice chair, Honolulu lawyer Jeff Portnoy, said everything is confidential. A spokeswoman for Green, Makana McClellan, declined to provide information on the nominees, including resumes and comments submitted by the public, citing confidentiality policies.

Information from the Hawaii Judiciary’s website shows the current nominees include three judges with significant experience on the Intermediate Court of Appeals. The other three nominees have no such experience.

For this story, Civil Beat spoke to prominent and longtime members of Hawaii’s bar about the six candidates tapped by the commission. The wide-ranging discussions were done with the understanding that Civil Beat would not quote the lawyers, who did not want to be put in a position that could affect their cases or their clients in the future.  

One nominee considered a front-runner has no experience as a judge at all.

Instead, is a second-generation Honolulu lawyer from a prominent political family, with strong ties to labor unions, including the State of Hawaii Organization of Police Officers.

Devens’ father, Paul Devens, was a managing director for Honolulu Mayor Frank Fasi, and his mother, Setsuko Sugihara, was a piano teacher. Perhaps most important, Devens is a former law partner of Andy Winer, a Hawaii political fixer who has served as an  following years as U.S. Sen. Brian Schatz’s chief of staff.

“Vlad’s former partner is Andy Winer, so there are certainly people who are going to be in Vlad’s corner,” one local attorney said. “There are going to be a lot of people who say Vlad’s a good guy.”

Longstanding respect in the community and deep connections outweigh Devens’ lack of experience as a judge, two other lawyers said. His lived experience, “raised in the boiler room of local politics,” as one put it, has given Devens intellectual toughness that one local attorney described as “hard as nails.”

“The word on the street is the guy is a lock,” a fourth lawyer said.

To choose Devens, Green must pass over judges already serving on Hawaii’s Intermediate Court of Appeals. They include Lisa Miyoko Ginoza, who has served on the ICA since 2010 and as chief judge since 2018; Clyde J. Wadsworth, an associate ICA judge since 2019, and Karen T. Nakasone, who’s been an associate judge with the ICA since 2020.

Ginoza, viewed as a centrist, has by far the most experience on the appellate bench. But two lawyers interviewed said her background as a former partner with the corporate firm McCorriston Miller Mukai MacKinnon has raised questions among progressive members of the bar. One lawyer said the view is Ginoza will protect the “status quo” instead of forwarding the court’s recent progressive trends. 

Still, another lawyer who corroborated that view acknowledged, “You can’t question her credentials.” 

Yet another lawyer said that based on merit, the two best choices would be Ginoza and Wadsworth, a Princeton-educated lawyer who worked for Alston Hunt Flord and Ing, now the Hawaii office of the global law firm Dentons, before becoming solicitor general for the State of Hawaii in 2017. As solicitor general, Wadsworth led state and federal appeals for Hawaii’s attorney general, giving Wadsworth significant appellate experience before he joined the ICA in 2019.

A second lawyer agreed Wadsworth was “far and away” the best of the nominees.

“He’s just really, really good,” the lawyer said.

Although far less experienced than Ginoza, Nakasone may have more support from progressive and public interest law types because of her 15 years’ experience as a criminal trial and appellate lawyer for the State Office of the Public Defender. 

“She’s extremely well respected,” one lawyer said.

Concerns about diversity on the bench can’t be overstated. Of the three current Supreme Court justices who will remain, only one, Sabrina McKenna, is a woman and a person of color. The other two are white men: Chief Justice Mark Recktenwald and Associate Justice Todd Eddins. In this context, it seems unlikely the Senate would confirm two more male nominees.

The 2021 nomination of Hawaii Ethics Commission director Daniel Gluck to the Intermediate Court of Appeals offers a case in point. Gluck’s nomination went down in flames in the Senate amid criticism that then-Gov. David Ige had chosen a white man for the job. , critics noted it had been 30 years since a Native Hawaiian was appointed to the appeals court and 20 years since a Native Hawaiian was appointed to the Supreme Court.

Gluck withdrew his application and commended the critics for “voicing their deeply rooted, legitimate grievances regarding the ways in which systemic racism and inequality permeate our lives.”

If Green wants to respond to such concerns by nominating a Native Hawaiian justice, he has two possibilities: Summer M. M. Kupau-Odo, a judge on the state District Court, and Catherine Haunani Remigio, a state Circuit Court judge. 

Neither has the level of experience of the appellate judges, but Kupau-Odo especially checks off a number of boxes that could appeal to Green, who recently has been under fire from Native Hawaiian and environmental activists. Kupau-Odo is Native Hawaiian and a woman, and has worked for Earthjustice and the Native Hawaiian Legal Corp., two of the state’s most influential environmental law firms. 

She was also born and raised in Lahaina and graduated from Lahainaluna High School, something one lawyer said “is hard to ignore,” given the emotionally charged legal issues almost certain to arise surrounding Lahaina’s recovery. 

“Summer has a lot of buzz,” another lawyer said. “She gives speeches, and says stuff that resonates with people. I do think that people think she is an up-and-coming positive figure.”

One question is whether she has the experience to help guide Hawaii’s high court.

Another question: What would happen to more experienced judges if Green nominated Devens and Kupau-Odo?

“The problem is that leaves all of the ICA judges out in the cold,” one lawyer said.

In 2017, Remigio, then a Family Court judge, was appointed to fill a Circuit Court vacancy created by the retirement of former Circuit Judge Steven Alm, now the Honolulu Prosecuting Attorney.

A Kamehameha Schools graduate, Remigio also would seem to fulfill the requests of those who have called for a Native Hawaiian justice of the Supreme Court. But unlike Kupau-Odo, Remigio has not worked for Earthjustice and is not from Lahaina.

Green has until Oct. 27 to announce his nominees. The governor could act sooner, which would enable the Senate to confirm his nominees before Thanksgiving.