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Tell It To The Judge

The newest member of the 9th U.S. Circuit Court of Appeals is none other than Judge Mark Bennett, a former attorney general who’s intent on applying the law both impartially and faithfully.

The judiciary branch of the U.S. government — traditionally the least bombastic of the three governing bodies — has been in the headlines more often these days than it would perhaps prefer.

Whether it is a single appellate judge striking down executive policy or the shifting tides of the U.S. Supreme Court, these arbiters of impartial justice are being dragged into the political and media spotlight.

Thus, when it came time to fill Hawai‘i’s vacant seat on the 9th U.S. Circuit Court of Appeals — the largest of the 13 courts of appeals, covering California, Oregon, Washington, Arizona, Montana, Nevada, Idaho, Alaska, Guam, Northern Marianas Islands and, of course, Hawai‘i — a harsher lens zeroed in on President Donald Trump’s nominee: Mark Bennett.

It is telling, then, that Bennett sailed through the nomination and confirmation process with a bipartisan 72-27 vote in the Senate and the resounding support of Hawai‘i’s Sens. Brian Schatz and Mazie Hirono.

Who is this man who enjoys such support from all sides in these divided times? MidWeek recently sat down with the judge to find out.

Judge Mark Bennett takes a moment with his three law clerks: Adam Marqulies, Danielle Kiyabu and Cameron Fraser.

It begins, strangely, with math.

“I envisioned a career as a mathematician,” says Bennett. “I often saw things through a mathematical lens, which contributed to me being a nerd in high school, but I always liked a logical way of thinking.”

Born in Brooklyn, New York, Bennett admits that his first try at getting that math degree didn’t quite work out. He returned to school a few years later — but this time, in political science.

Bennett graduated with his bachelor’s degree from Union College before heading to law school at Cornell.

His path may never have brought him to Hawai‘i — but fate intervened.

“I was pretty sure I was going to work as a federal prosecutor, but like many law students, I wanted to work for a judge for a year.

“I had the great fortune for being the law clerk for Judge Samuel P. King, who was the chief judge for the U.S. District Court here (in Hawai‘i), and I had the even greater good fortune of meeting my wife (Patricia Ohara), who is from Hawai‘i, who was working for him at the same time.”

After a brief stint as a U.S. assistant attorney in Washington, D.C., Bennett and Ohara permanently relocated to Hawai‘i in 1982, where he continued to practice law. His career also included the pinnacle of law enforcement in the state: Bennett served as attorney general under Gov. Linda Lingle.

“Being a lawyer, at least in the kind of law I practice — you’re being an advocate. You are advocating for a particular point of view, while recognizing that there is obviously another point of view, but arguing, for the most part, that you are right and they are wrong,” Bennett explains.

“Being an attorney general, you are more than an advocate; you are a representative of the people, and you really have to listen more and make policy decisions and legal decisions after listening to all sides,” he adds.

“Because the attorney general is sometimes an advocate, sometimes the chief law enforcement officer … I think those kinds of experiences where listening and hearing all sides was part of the job — I mean, that’s a lot of what a judge does.”

Bennett sees a judge’s duties as being very clear.

“You are not an advocate,” he says. “You look at the evidence and the legal issues, and you apply the law impartially and without bias to try to come up with the right answer.”

His duties as a 9th U.S. Circuit Court judge boil down to a single sentence in the oath every judge swears.

“It says, among other things, ‘I solemnly swear to do equal right to the poor and to the rich,’ and that captures the motif that justice is blind, that judges are supposed to decide cases without regard to the power or stature or economic status of the litigants.

“Their job is to do the right thing by applying the law faithfully.”

And anyone who knows Bennett has confidence that he will execute that impartiality without hesitation.

“I have known Judge Bennett professionally for a long time before he became attorney general, and worked closely with him as his first deputy attorney general,” says Russell Suzuki, the state’s current attorney general. “His tenure at the Department of the Attorney General was driven by public service, focused on legal excellence and was distinguished by the highest ethical standards.

“Combining all these qualities with his vast experience at the state and federal levels, I know he will be an ideal judge — effective and fair on the bench.”

The man with the bipartisan faith of so many looks at his new assignment humbly, calling it “a tremendous honor.”

“Public service has always been a big part of my legal career, and it is a real privilege to be back in public service again.”

HOME AT HEART

One of the less orthodox items that decorate Judge Mark Bennett’s office are two seats from the original Yankee Stadium, which was demolished in 2009.

“I’m a big Yankees fan and a big New York Giants football fan,” Bennett says with a grin. A friend even gave him two Aaron Judge jerseys — appropriate for his new job. He proudly saw the Giants win Super Bowl XLII in 2008, too.

“The Yankees did not win the World Series, and the Giants are going through a lost season, but that’s life,” he sighs.

Of course, he promises that he loves University of Hawai‘i football, too.

A SUPREME STATEMENT

Hanging in the place of honor above Judge Mark Bennett’s desk are two framed mementos of the two cases he argued before the U.S. Supreme Court as Hawai‘i’s attorney general.

“I was fortunate to win both cases,” Bennett says with a smile.

Those cases, of course, are Lingle v. Chevron U.S.A. Inc. (in which the court ruled that Hawai‘i was not unconstitutional in limiting how much rent oil companies could charge gas station dealers, a decision that overruled previous precedent in government regulation of private property effects) and Hawai‘i v. Office of Hawaiian Affairs (in which the court ruled that the state had the right to sell former Hawaiian Kingdom crown lands).

“The judge who wrote (the decision) signed them,” he says, “so I have one by Judge (Sandra Day) O’Connor and one by Justice (Samuel) Alito.”

The Lingle v. Chevron case in particular, he says, has a bit of meaningful history behind it.

“That day was the first day in the history of the U.S. where a woman presided over the Supreme Court,” Bennett says.

Chief Justice William Rehnquist was unable to attend court that day, and the next senior judge was also out — so O’Connor led the court.

“I thought that was just very cool,” Bennett says.

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