I’m sorry for this late post, but when I saw the obituaries of former Chief Justice Herman Lum in the Advertiser and Star-Bulletin, it triggered some reflection. Lum was an interesting character and, in my view, much of what he accomplished and was long remembered for was skipped over in these obits.
In this case, forgotten history provides needed context for and helps to understand current issues.
Lum had been at the helm of the Supreme Court for just two years when the whole array of issues stemming from the questionable lobbying activities of the judiciary broke into public view in mid-1985. I was state director of Common Cause at the time, and much of the story is told in news clips I collected during the period.
It began with a report I compiled during and after the 1985 legislative session which focused on the judiciary’s questionable lobbying activities. News stories on that original report, released in July 1985, can be found here, and the bad press for the judiciary kept coming. If you want to see more of it, check out the Common Cause clips from 1985 (Part 1 and Part 2, both very large files).
The bottom line was that under Lum’s predecessor, the Judiciary had grown by becoming thoroughly politicized, engaging in heavy lobbying, and becoming dangerously tied to Democratic Party leaders and individual legislators of both parties.
Lum, faced with calls for investigations of the allegations, named an independent “blue ribbon” panel and began a process of depoliticizing the courts and dismantling the empire built up by the popular court administrator, Tom “Fat Boy” Okuda.
Okuda had carefully cultivated friendships with key political figures and they struck back with a vengeance, punishing Lum and the courts using a variety of pretexts to show their displeasure with what they saw as the scapegoating of Okuda.
It fell to Clayton Hee, then in his first Senate term and chair of the Senate Judiciary Committee, to lead the public charge against Lum and in defense of Okuda, who (if I’m not mistaken) lived in Hee’s windward Oahu district. In committee hearings, Hee sneeringly referred to Lum as “Mister CJ”, dragging out the “Mister See Jay” into a term of derision, as he went after Lum on issue after issue.
It made a good media show, but it apparently didn’t play to rave public reviews, as Hee lost his re-election bid in 1988, if I recall correctly.
The bigger result, though, was a lost decade for the courts. Although there were significant internal reforms following the “Blue Ribbon” Panel and other consultant findings, the legislature punished Lum by letting judicial salaries and court budgets stagnate for more than a decade.
They’ve been playing catch-up ever since. Hence, I think, the reluctance of the judiciary to go along with the governor’s suggestion that all public officials defer scheduled salary increases recommended by the salary commission. It’s all tied up in this history of controversy and politics.
This political history didn’t even get a mention in the Advertiser’s obit, while the Star-Bulletin at least noted it for the record with a two-sentence paragraph.
Lum also faced political firestorms swirling around court lobbyist Tom “Fat Boy” Okuda, who left the Judiciary after a traffic ticket-fixing scandal. Near the end of his term, Lum acknowledged those controversies distracted from his primary job of delivering justice.
And so it goes.
Beginning with the microscopic, and perhaps petty, my experience as an advocate before the court was punctuated by CJ Lum’s persistent habit of beginning oral argument with the pronouncement that “we’ve read the briefs, counsel, do you have anything to add?” and then proceeding to lean back in his chair and stare at the ceiling for the rest of the proceedings. Which only made everyone think, “OK, why are we holding argument if you’re not interested in listening?” Compared to the present CJ’s apparent view that oral argument is an unnecessary and irritating waste of time, I guess we should be thankful that the “Lum court” held argument at all.
On a more substantive level, while there were a few notable decisions, as mentioned in the obits, much of his time as CJ was marked by the generation of slews of useless memorandum opinions filled with “ipse dixit” pronouncements, no doubt written by Frank “I say it, therefore it is” Padgett, that provided no guidance to the bench or bar.
The obits also fail to mention that, to the extent CJ Lum was throwing “Fat Boy” Okuda under the bus, he may have been trying to deflect attention from his own confusion of the boundaries between work and personal business. There was the matter of certain State-paid improvements to his home, at least a carpet job, that were justified as being necessary to hold receptions in his capacity as CJ. There was also the matter of him failing to recuse himself in matters implicating friends and business assocaites, notably Sherman Hee and the Royal Hawaiian Shopping Center. Whatever else you may want to say about the man, these kinds of things showed him to be every bit the product of the “old boy machine.”
One thing for which I will alwys remember the late CJ is his impeccably classy and gracious bailiff, Herman Luke. He always made counsel feel welcome, listened closely, and unfailingly offered support and encouragement. He was the face of the Supreme Court that CJ Lum never displayed.
Clayton Hee did lose his Senate seat in 1988 and it may well have been due to his treatment of “See Jay” Lum. I think what stuck in most people’s craw, however, was his utterly classless handling of Tommy Kaulukukui’s Circuit Court confirmation hearing.
Kaulukui had the misfortune of being nominated in the aftermath of the ideological bloodletting that marked the hearings on Robert Bork’s nomination to the US Supreme Court. Flush with the “smoking gun” of a piddly monetary sanction imposed by the notoriously cantankerous federal judge Martin Pence that Kaulukukui had failed to disclose on his application, Hee hauled him for a private tonguelashing. Hee emerged from the “meeting” satisfied by Kaukukukui’s explanation and supportive of the nomination, intoning that Kaulukukui “broke himself down, made himself a man.”
Oh, puh-leeze. Hee is no Joe Biden, then chair of the US Senate Committee on Judiciary who won praise for conduct of the Bork’s confirmation hearings, and certainly not a Tommy Kaulukukui, son of a Hawaiian Renaissance icon and a veritable war hero.
Unfortunately, the Senate’s loss was OHA’s greater loss as Hee went on to years of tormenting that institution’s already dysfunctional board with his sophomoric and bullying student council antics. All of this came rushing back when Hanabusa made him Senate Judiciary Chair two years ago. One had to wonder, does no one remember the bombastic excesses of this man’s earlier stint in the position? Apparently not, but he quickly reminded us and, after only one session, was replaced by the steady, stable, and even-tempered Brian Taniguchi.