The Secret World of Judicial Appointments

See also posts re electing judges (which is an even worse way to choose judges) in Role Model Lawyers blog.

The Secret World of Judicial Appointments
By: WILL CARLESS
Voice of San Diego
April 18, 2008

Wednesday, Feb. 13, 2008 | On Oct. 17, William Gentry, Jr., a local prosecutor with the District Attorney’s Office, announced he was running for election as city attorney against the incumbent Democrat, Mike Aguirre. Gentry had the support of District Attorney Bonnie Dumanis, who wrote a gushing letter to local lawyers urging them to back him in the race.

“I’m in this to win and 100 percent committed to it,” Gentry told The San Diego Union-Tribune the day he entered the race.

But three months later, despite raising more money than any other candidate, Gentry suddenly dropped out of the race. After a fellow Republican, Superior Court Judge Jan Goldsmith, decided to run against Aguirre, Gentry said he didn’t want to split the vote against Aguirre and urged his supporters to vote for Goldsmith.

A week later, Gentry had a new gig. He was appointed as a Superior Court judge by Republican Gov. Arnold Schwarzenegger. The move raised eyebrows in the local legal and political communities, with many pontificating that Gentry’s appointment was a trade-off for dropping out of the race against Aguirre and clearing the way for Goldsmith.

And a number of local attorneys, who spoke anonymously because they could appear in front of Judge Gentry, questioned whether the former district attorney was the best qualified of several local lawyers sitting on a waiting list for Superior Court judgeships.

But the screening and appointment process undergone by Gentry, and all other prospective judges, is shrouded in secrecy, leaving details of nominations, including the rating given to applicants by an independent commission and the number of potential rivals for each judgeship, outside of public view.

“We’ll never ever know whether this was an inducement to leave,” said Steve Erie, a political science professor at University of California, San Diego. “But the timing of it raises eyebrows. It’s like remarriage after a divorce. The timing is awkward, the timing is unseemly — that it’s occurring so shortly afterwards.”

Gentry said there’s no connection between his leaving the race and his appointment. He said he applied to the Governor’s Office two years ago and had long cleared the vetting process to become a judge when he decided to have a stab at the city attorney’s job. The governor’s judicial appointments secretary, Sharon Majors-Lewis, who used to be a San Diego district attorney herself, said Gentry was chosen purely because of his outstanding qualifications. Before being appointed, Gentry joined the San Diego District Attorney’s Office in 1998, and he is an Iraq War veteran.

“He’s absolutely got the qualifications necessary to be a judge, not to mention his community service involvements and so forth,” Majors-Lewis said. “If he didn’t have the qualifications, he could not have been considered or appointed.”

Becoming an appointed Superior Court judge in San Diego begins with an application to the Governor’s Office.

The Governor’s Office sends each application to a committee in San Diego, the Judicial Selection Advisory Committee. The identity of the members of that group is secret, as is the number of people on the committee and the process by which they assess the applications sent to them. A number of members of the local legal and political communities said District Attorney Bonnie Dumanis is a member of the committee, but the Governor’s Office would not answer any questions about the group.

After its own team has vetted the applicants, the Governor’s Office passes applications it approves of to an independent state Bar commission that’s tasked with assessing the qualifications of potential judges: The Commission on Judicial Nominees Evaluation, known as the JNE Commission.

The JNE Commission, which is made up of active members of the state Bar, former members of the judiciary and members of the public, then begins an exhaustive assessment of each candidate’s qualifications. That includes canvassing present and former colleagues and acquaintances of the applicant and gathering feedback on everything from the aspiring judge’s temperament, to their character, to their record as an attorney.

Those meetings take place behind locked doors. Every document that’s viewed in the meetings is shredded. William Kopeny, the current chairman of the commission, said if a non-commission member enters the meeting to change the air conditioning, the meeting stops until the non-member leaves.

And almost every single element of the JNE Commission’s evaluation of each candidate is strictly confidential. Releasing information from the commission to the media or anyone else is a misdemeanor, Kopeny said.

Past and present commission members said there are very good reasons why the information gathered on each applicant is kept confidential. To accurately assess each candidate’s eligibility, the commission relies on frank and honest feedback from people who know that candidate well and who may have a close relationship to them. The commission would not get that sort of frank information if journalists and members of the public were allowed to pick through the feedback they collate, the commission members said.

“If participating lawyers thought their information was going to be vetted in public, they would be loath to pass it on,” said Diane Karpman, a legal ethicist and former member of the JNE Commission.

Once the commission has considered each candidate, it awards them one of four ratings: Extremely well qualified, well qualified, qualified or not qualified. This rating is sent to the Governor’s Office.

Theoretically, the governor can still appoint someone who has been rated “not qualified” by the JNE Commission. If that happens, the state Bar can choose to make public the fact that they rated the governor’s appointee as such but the governor appointed them anyway.

But the state Bar doesn’t have to say anything.

One former commissioner said the bar could choose to keep quiet about an unqualified appointee in order to protect the governor from embarrassment.

Gentry’s rating by the JNE Commission isn’t public information. Assuming he was considered by the commission as qualified to be a judge, there is no public record whether he was rated as merely qualified, or well qualified or extremely well qualified.

Kopeny said Gentry, or any other applicant’s rating, can be made public by the Governor’s Office if they chose to do so. But the governor’s officials don’t have to say anything if they don’t want to. A spokeswoman for the Governor’s Office said anything related to the JNE Commission is confidential, and that the office could not release Gentry’s rating.

And, in theory, the governor doesn’t have to answer to anyone when it comes to his judicial appointments. Because the appointments are, by nature, political, Kopeny said it’s the governor’s prerogative to appoint whomever he wants, whenever he wants, for whatever reason.

“The governor’s supposed to use political considerations. That’s the reason some people vote for him, so that he’ll appoint people who are of a like mind or that he’ll appoint people who will, in some way, serve the political party that he’s a member of,” Kopeny said.

For his part, Aguirre said there’s no doubt Gentry’s judicial appointment was made to further the ambitions of the Republican Party to knock him out of office.

“If any of my friends who are Republicans want to be appointed judges, this is the time to announce your candidacy for city attorney,” he said.

Is the public served when attorneys and litigants do favors for judges? Let's take the politics out of choosing judges

See blog post: Chief Justice John Roberts: Judge Brent Benjamin doesn't have to recuse himself just because of a measly $3 million campaign contribution

Electing judges is a bad idea, but appointing judges is almost as bad. Why not create a pool of highly-rated attorneys, created by the Bar Association (we don't want to eliminate politics completely, right?), and then use a lottery to choose judges from that pool as positions become available?

Seriously, why not? The only reason not to do this is to keep politics in the courtroom.

But for now, we're stuck with judicial elections in San Diego. Let's choose the best candidates. Federal prosecutor Carla Keehn is running against Judge Lisa Schall in June 2014.


MATT TAIBBI'S NEW BOOK ABOUT OUR TWO-TIERED JUSTICE SYSTEM



The Divide
American Injustice in the Age of the Wealth Gap
Matt Taibbi and Molly Crabapple
PBS
April 6, 2014

...On how he discovered 'the divide'

I was covering these gigantic Wall Street white-collar-criminal scandals, and I became interested in the concept of why nobody was going to jail, why we didn't have criminal prosecutions. And then it occurred to me that it's impossible to really talk about the gravity of that problem unless you know who is going to jail in the United States, and how those people go to jail and how that works.

What I ended up finding is that it's incredibly easy for people who don't have money to go to jail for just about anything. There's almost an inverse relationship between the ease with which you can put a poor person in jail for, say, welfare fraud, and the difficulty that prosecutors face when they try to put someone from a too-big-to-fail bank in jail for a more serious kind of fraud.

On media coverage of white-collar crime

Over time I think a kind of Stockholm Syndrome develops, it's kind of the same thing that happens with campaign reporters and candidates: You start to sort of sympathize with the people you cover in this weird subterranean, psychological way.

'A Very Sordid Story'

Matt Taibbi On The Fairfax Financial Case

In this audio clip, NPR's Kelly McEvers asks Matt Taibbi about the most salacious case in his book, The Divide. Taibbi tells and the short-sellers who Fairfax alleges took revenge when a deal didn't go through as expected. The company sued in 2006.

Taibbi says it's a great example of the judicial divide between the rich and poor. It's easy to think hedge fund managers can't be criminals, he says, because they're often seen as polite and refined.

"[But] in many cases, they're really not," Taibbi says. "I mean, in this case, they're just as streety and gross as any other kind of criminal."

I think what ends up happening is these stories get written about, but they get written without outrage, or without the right tone, and they are also not written for the right audiences. They're written for Wall Street audiences who want to find out how this lawsuit turned out. They may not want to see those people thrown in jail, they just might be interested in seeing how far the government is willing to go this week in putting white-collar offenders in jail.

On comparing banks and people

The HSBC case was . This is a bank that admitted to washing over $850 million for a pair of Central and South American drug cartels. They admit to this behavior, they pay a fine, no individual has to do a day in jail. All I really wanted to say was, here are our actors at the very top of our illegal narcotics business who are getting a walk from the government, a complete and total walk ...

I went to court that day, I asked around and said, "What's the dumbest drug case you saw today?" I found an attorney who was willing to put me in touch with a number of people who had been busted and thrown in jail for having a joint in their pocket...


Retired Judge Linda Quinn is working with school attorney Dan Shinoff
of Stutz Artiano Shinoff & Holtz on a fundraiser for Judge Lisa Schall.

See all posts re Judge Lisa Schall.

See all posts re Judge Gary Kreep.