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State Senate Panel Votes Not to Recommend Appeals Court Nominee Daniel Gluck

daniel gluck court of appeals.jpg
Office of Gov. David Ige; Hawaiʻi State Judiciary
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Gov. David Ige nominated Daniel Gluck to serve on the Intermediate Court of Appeals.

The Hawaiʻi Senate Judiciary Committee voted Wednesday not to recommend Gov. David Ige's Intermediate Court of Appeals nominee Daniel Gluck be confirmed by the state Senate.

Despite a "no" vote from the committee, Gluck's nomination will be decided by a full Senate vote Thursday.

In a 4-3 vote, senators Kurt Fevella, Jarrett Keohokalole, Laura Acasio, and Donna Mercado Kim voted against Gluck. Senators Karl Rhoads, also the Judiciary Committee Chairman, Chris Lee, and Mike Gabbard voted in favor of recommending Gluck.

The committee heard four hours of testimony Tuesday on the nomination of Gluck, the executive director of the Hawaiʻi State Ethics Commission. The testimony was not so much against Ige’s judicial appointee, but against the nomination process that has left a lack of representation of women and persons of color on Hawaiʻi’s highest courts.

Critics questioned Ige’s choice of Gluck, a white man, for the job, noting it’s been 30 years since a Native Hawaiian was appointed to the appeals court and 20 since a Native Hawaiian was appointed to the Supreme Court. They argued Ige’s pick is the result of systemic inequality.

Others have questioned Gluck's legal experience given he hasn't brought as many cases to trial as other potential nominees put forward by the state Judicial Selection Commission.

Senators peppered Gluck with questions on representation in the courts, systemic racism, and whether he believes Ige showed intrinsic bias in his choice.

"I'm not in a position to speak to the governor's selection," Gluck said Tuesday. "People have been asking me to withdraw here in testimony today. I feel that deeply. I really do. But if the issue is to follow the law, the law has a process set out. And if that process results in me being confirmed then that’s great, the process will have worked and I look forward to serving."

If the process results in his not being confirmed, Gluck said the process will have worked and one of the other nominees will serve.

Gluck's supporters noted his keen legal mind, his dedication to social justice and his fairness. Assistant Federal Defender Jacquie Esser defended Gluck’s track record, urging senators to look at the wide range of his judicial experience.

"He clerked as a Supreme Court law clerk, which no one has been mentioning. But he’s basically done the job which he will be appointed to do. He wrote opinions for a Supreme Court Justice. He knows the ins and outs of an appellate court," Esser said.

Lois Perrin, who used to work with Gluck at the American Civil Liberties Union of Hawaiʻi, testified Gluck was even-headed and able to mediate disputes.

“I’ve seen him reading opinions and just trying to understand every facet of every argument, and to really get a handle on that. And I think that’s so important for somebody that’s going to be appointed to potentially to an appellate court position,” Perrin told the committee.

Kapua Sproat, a University of Hawaiʻi law professor, said she objected to Gluck’s relative lack of professional and lived experience compared to others on the six-person list of candidates the commission gave Ige.

She said lived experience matters, citing the example of William S. Richardson, a Native Hawaiian who was Hawaiʻi’s chief justice from 1966 to 1982. She said Richardson infused Hawaiian values and culture into Hawaiʻi’s laws. She said that’s why Hawaiʻi law protects public beaches and water flowing in streams and guarantees Native Hawaiians the right to practice their culture.

“You may hear criticisms of his jurisprudence as being provincial, but I call it culturally relevant,” she said of Richardson.

Several testified that they took issue with Ige selecting Gluck over three qualified Native Hawaiian women on the commission’s list.

Marti Townsend, the director of the Sierra Club of Hawaiʻi, said it’s a problem when the governed and the governing don’t see themselves in each other.

“Nearly half of the governed in Hawaiʻi do not see themselves in our justice system. This is a serious problem for the functioning of our democracy,” she said.

Zuri Aki, the public policy director for the Council on Native Hawaiian Advancement, said Native Hawaiians are overrepresented among those who are arrested, incarcerated and sentenced, even though they are not more likely to commit crimes.

“This correlates with the lack of Native Hawaiian representation among the judiciary,” he said.

Gluck and his defenders said he didn't go to trial as much as others considered for the position in part because many of the legal cases he was involved with at the ACLU and ethics commission were settled before trial.

Pankaj Bhanot, the former director of the state Department of Human Services, said there were “countless” examples of brilliant judicial minds serving on courts even without much trial experience, including U.S. Supreme Court Justice Elena Kagan.

“I am baffled that we are so stuck on having trial experience, which is not the only criteria to practice law,” he said.

Originally from New York, Gluck graduated from Cornell University and Harvard Law School, where he served as president of the Harvard Legal Aid Bureau. He has worked as a law clerk to former Associate Justice James E. Duffy, Jr., of the Hawaiʻi Supreme Court, and to Judge J. Michael Seabright, U.S. District Court Judge for the District of Hawaiʻi, according to Ige's press release.

He's been practicing law for 18 years and has served Hawaiʻi's communities as a law professor at the University of Hawaiʻi, legal director at the ACLU Hawaiʻi, and as the head of Hawaiʻi State Ethics Commission.

Gluck also received the support of the Hawaiʻi State Bar Association, state Attorney General Clare Connors, and Duffy, Jr.

Under Hawaiʻi law, the Judicial Selection Commission reviews and evaluates applications for all judicial vacancies. It selects qualified nominees by secret ballot. The governor selects nominees for the appeals and supreme courts from lists provided by the commission.

Updated: July 28, 2021 at 11:45 AM HST
Updated to reflect the Hawaiʻi Senate Judiciary Committee's "no" vote on Wednesday, July 28, 2021.
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