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The Honolulu Advertiser
Posted on: Friday, January 29, 2010

Senate panel deadlocks on Kubo

By Derrick DePledge
Advertiser Government Writer

Hawaii news photo - The Honolulu Advertiser

Edward Kubo

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The state Senate Judiciary and Government Operations Committee deadlocked yesterday on the nomination of former U.S. Attorney Edward Kubo as Circuit Court judge, jeopardizing Kubo's Senate confirmation.

The Senate, which could vote on Kubo as early as today, usually follows the recommendation of committees and their leaders.

While the committee was split 3-3 on Kubo, state Sen. Brian Taniguchi, D-10th (Mānoa, McCully), the chairman, voted to reject the nomination because of what he considered Kubo's insufficient answers to questions about whether he should have more fully disclosed his actions in some controversial cases.

Kubo did not disclose in his application to the state Judicial Selection Commission but later informed the Hawai'i State Bar Association that he was ordered by a federal judge in 1997 to write letters of apology to jurors after the judge dismissed a case because Kubo did not show up in court.

Kubo said he had gone to lunch after a major explosion and power outage downtown.

Kubo told the senators he did not disclose the judge's reprimand to the Judicial Selection Commission because "I didn't think this was of that nature of professional negligence."

Two assistant U.S. attorneys who used to work for Kubo also submitted written testimony critical of his nomination.

One of the letters claimed Kubo improperly inserted the U.S. Attorney's office into a domestic violence case in state court that involved two agents with the federal Immigration and Customs Enforcement agency, or ICE.

Kubo's office filed an amicus, or "friend of the court," brief in the case in March 2009, which the assistant U.S. attorney said was an improper attempt to "ease the conditions" of a restraining order against the defendant.

Kubo told senators yesterday that he had no role in filing the brief but was informed about it afterward .

Taniguchi said he was persuaded not just by the lack of disclosure or the substance of the cases, but by Kubo's responses to the committee about whether, in hindsight, he should have been more forthcoming.

"I think, for me, I kind of wanted to see how the nominee would respond to these kinds of concerns, because I think that's part of what it takes to be a judge," said Taniguchi, who described his decision as difficult.

Kubo's nomination has received widespread support from the legal and political communities, with praise for his record as a prosecutor and his commitment to community service. The Hawai'i State Bar Association gave him a qualified rating for Circuit Court judge.

Kubo, a Republican, was nominated by Gov. Linda Lingle, also a Republican.

"You know my character from your own personal observations of me," Kubo told senators.

State Sen. Robert Bunda, D-22nd (North Shore, Wahiawā), who voted for Kubo, said senators should weigh whether Kubo is qualified and will be a fair judge, not whether he gave a few weak responses to the committee.

"We should really rise above the politics of it all, Mr. Chairman, because there is really no valid reason to deny his appointment to the bench," he told Taniguchi.

State Sen. Sam Slom, R-8th (Kāhala, Hawai'i Kai), who also voted for Kubo, said Kubo's competence has not been questioned and noted, like Bunda, that the two assistant U.S. attorneys opposing his nomination did not appear in person to testify or answer questions.

"Everybody is entitled to their opinion and encouraged to come to hearings and to submit testimony," Slom said. "But if you're going to throw rocks, you better be around to answer questions."

Slom said rejecting Kubo, after he had received such overwhelming support, would send the wrong message to people who are considering public service.

"If it comes down to, not the character, not the integrity, not the experience, not the support, not the lack of opposition any real opposition but it comes down to one individual's belief that the answer was not properly framed or not emphasized, I think we're really doing a disservice to people."