BY JIM DOOLEY – Circuit Judge Richard Pollack, nominated to serve on the Hawaii Supreme Court, bluntly criticized the U.S. Supreme Court today, saying its members “have embarrassed themselves” with recent rulings.
His comments came in a confirmation hearing before the state Senate Committee on Judiciary and Labor.
“I think the U.S. Supreme Court gets it wrong lots of times,” Pollack told the committee.
He also said he disagreed with a recent majority decision issued by the Hawaii Supreme Court in a case involving limits on Native Hawaiian gathering rights.
Pollack’s statements came in response to questions from committee members at the close of the hearing. Testimony delivered in his behalf was uniformly favorable, with one witness, former Hawaii Attorney General Robert Marks, describing the hearing as a “hug-fest.”
Asked by Sen. Sam Slom, R-8th Dist. (Hawaii Kai, Aina Haina, Kahala, Diamond Head), which recent U.S. Supreme Court decisions he found fault with, Pollack cited an April ruling that held jails have the right to perform invasive personal searches of individuals arrested for minor traffic offenses.
“Our United States Supreme Court said you can do those personal invasive searches because we’re going to defer to corrections for penological interests,” Pollack told the committee.
But the Hawaii Supreme Court correctly decided a similar case 30 years ago, said Pollack.
“Our court said you couldn’t do that, you needed a reasonable basis to have that kind of strip invasive search,” Pollack told the committee.
He said that U.S. Supreme Court John Roberts wrote in a brief concurrence to the decisoion that there could be “exceptions” to the search rule. Roberts said in allowing for exceptions that members of the high court “don’t want to embarrass ourselves in the future,” Pollack told senators.
“I think they’ve embarrassed themselves in the present,” Pollack then said.
The judge, who is now a member of the state Circuit Court bench, also took exception to a landmark U.S. Supreme Court decision in 2000 that allowed non-Hawaiians to vote in elections for the trustees of the Office of Hawaiian Affairs.
Pollack said he agreed with a dissent written by Associate Justice John Paul Stevens in that case, which is known as Rice vs. Cayetano.
The judge also said he didn’t agree with a recent Hawaii Supreme Court decision in which justices voted 3-2 to limit on Native Hawaiian traditional practices on property covered by state rules and regulations.
Pollack said he feels that rights and protections afforded under the state Constitution which extend into such areas as the environment and traditional Native Hawaiian practices aren’t asserted often enough and could be the basis for important legal rulings in the future.
He said that compared with the Hawaii state Constitution, the U.S. Constitution can appear to be an “antiquated” document.
Most of the Pollack hearing was taken up with testimony from retired judges, prosecutors, defense lawyers, and other supporters who unanimously praised the judge’s intellect, compassion, fairness and integrity in urging committee members to approve his nomination to the high court.
Attorney Jill Nunokawa, who served with Pollack when he headed the state Office of the Public Defender, affectionately called Pollack “a dork” who spends vast amounts of time pondering legal decisions.
“But it’s his heart and his true application of the integration of law to people that sets Richard Pollack apart,” Nunokawa said.
Pollack has the ability to apply the law to “everyday people, from the most marginalized and dispossessed all the way through to the richest of rich, from the Native Hawaii indigenous peoples to the person who just got off the jet. Richard Pollack will be fair across the board,” said Nunokawa.
Pollack, 61, has been a Circuit Court judge since 2000.
Senators have scheduled a special legislative session next week to vote on the Pollack nomination as well as that of attorney Peter Cahill to the Maui Circuit Court bench. A hearing on Cahill’s nomination will be held next week.
Governor Neil Abercrombie originally nominated Cahill to the bench but had to withdraw the nomination because it was made two days beyond the constituional deadline for such appointments.
The state Judicial Selection Commission then nominated Cahill.
Abercrombie’s deputy chief of staff, Blake Oshiro, told the senate committee today that personnel in the governor’s office miscalculated the number of days the governor had to make the appointment, counting business days instead of calendar days.
That lesson has been learned and won’t be repeated, Oshiro assured senators.