by Judith Copeland
Gov. Pete Wilson's appointment of Justice Janice Brown to the Supreme Court last year caused some controversy when it was revealed that the State Bar's Judicial Nominees Evaluation Commission (JNE, pronounced "Jenny") had rated her "not qualified."
There were calls for a major overhaul of the JNE process and a commission was formed to study and recommend proposed changes. Improvement in the process can result in improvement in the quality of the judges appointed to the bench, and perhaps, more fairness to the nominees.
However, any change in the independence of the commission would be a threat to the quality of the evaluations and hence to the quality of the bench.
In my opinion, members of JNE represent the most diverse and hardworking committee or agency of the State Bar.
Despite the widely divergent experiences and attitudes of the members, the group magically comes together to function as a cohesive entity.
The commission's focus is strictly on qualifications of the nominee. It has no input on political or policy considerations. Complaints about the number of district attorneys, women, men or Republicans being appointed to the bench must be directed to the governor, not the commission.
Recommendations from politicians do not help with the JNE evaluation process.
The commission historically finds about one-fourth of those evaluated "not qualified" for appointment to the bench.
While no records are kept on this topic, my memory (an often fallible thing) causes me to state that poor temperament (arrogance, bad temper), evidence of prejudice or bias and below average legal work (either due to lack of industry or interest) are the most common grounds for finding a nominee not qualified.
Contrary to popular belief, there is no litmus test. The lack of trial experience or lack of criminal (or civil) law experience do not alone cause a candidate to be unqualified.
Has the commission ever made a mistake? Absolutely. Some promising candidates have not performed well as judges and, no doubt, some have been precluded from appointment who may have served well.
Are the errors avoidable? Well, the problem is that the commission is composed of people. If a human being's skills, integrity, honesty, grasp of law, patience and courtesy could be evaluated objectively, there would be fewer errors.
But it takes people to evaluate people. In a group as large as the commission (27 members), the majority tends to reach the correct decision.
Commissioners with a bias or a "bone to pick" cannot sway the group. Many of the votes on nominees are split; unanimity is rare.
The charge of the commission is to fairly and honestly evaluate nominees. We feel obligated to not pass along nominees who we believe will not serve well.
The public is entitled to smart, honest, fair and hardworking judges.
To the nominees we feel obligated to be fair, to not be swayed by small town politics, posturing or inter-office bickering resulting in unfair criticism.
The task is a sensitive and difficult one, yet is beneficial to the public, the bar, the bench and the governor.
Some of our procedures will be changed this year. I hope to see a commission with more investigative power and continued freedom from political influence. Change can be good and we hope the changes will result in improvement.
If you have any suggestions for the process, please let me know. For the year ahead, wish me well.
San Diego attorney Judith Copeland was the 1995 chair of the JNE Commission. The Board of Governors recently reappointed her to chair the 1997 commission.