Don't kick Jenny, kiss her

by Joseph Lipper

The public and the news media have paid little attention to "L'affaire Jenny." But attorneys who have followed the flap should be concerned.

Jenny is the generic name for the Commission on Judicial Nominees Evaluation, whose members are picked by the Board of Governors.

The sin of Jenny is its genealogy. Everyone knows it was born during a Democratic administration (Jerry Brown) and a Democratic legislature. The two Republican governors since have not displayed any great love for it.

But it's time for all hands to practice statesmanship and reach a bipartisan accommodation which will let Jenny do its work without crippling external sniping.

The current crossfire was triggered when Gov. Pete Wilson appointed Janice Rogers Brown to the state Supreme Court. Jenny evaluated her and found her not qualified.

Two actions by the bar ensued:

1. A panel headed by retired Appellate Justice Harry Low was set up to determine if anyone on Jenny leaked confidential evaluation to the media and if Jenny's chair, Rita Gunasekeran, wrongly disclosed confidential information when testifying at an open hearing.

2. A committee, headed by Appellate Justice James Ward, was set up to determine if the commission should be altered.

The Low panel for all intents and purposes cleared Jenny and its chair. But the ground is still shaking as the second panel continues with its task.

Every California citizen interested in quality judges has a stake. It is not a private fight.

Because Jenny's critics did not like the evaluation in the Brown case, they have agitated for emasculation or abolition.

If Jenny is killed or crippled, an important instrument of balance and public interest in selecting judges would disappear.

True, the constitution vests in the governor the power to appoint judges. But Jenny was created by a well-reasoned statute 17 years ago to provide deliberative and independent review of potential judicial appointments.

Jenny does not have power to nominate or appoint judges; it can't even stop a governor from appointing whom he likes. The Brown case demonstrated that.

Its job is to conduct a thorough and non-political evaluation of the governor's candidates. The full commission's non-binding ratings are sent to the governor within 90 days. Until Gov. Wilson named Justice Brown, no governor has appointed a candidate rated NQ by the commission.

Certain anti-Jenny forces picture the 27-member body as a den of liberals. Not so. There are Republicans as well as Demo-crats, conservatives and liberals, and public members from many fields. All serve without pay. Regardless of the governor, analysis shows that 75 to 80 percent of candidates are found qualified.

To the Ward panel, I say don't focus solely on technical or procedural changes. Look for broad, strategic ways to strengthen Jenny and the environment in which it operates.

The panel should call for a summit meeting of the governor, legislative leaders and the State Bar to shape a universally accepted Jenny.

In a system of government that prizes checks and balances, Jenny deserves a pat on the back and not a kick in the you know what.

Joseph Lipper is a Jenny commissioner and former State Bar governor.