Until 1979, the elected governor of the state could appoint anyone he (there has been no she) wanted to the bench. No one would deny that such appointments were made on occasion for reasons other than the nominee's suitability for the bench. In 1979, the legislature enacted GC 12011.5, providing that the state bar association shall evaluate all potential judges prior to their appointment by the governor.
The State Bar created the Commission on Judicial Nominees Evaluation (JNE, pronouned Jenny) to perform the evaluations. JNE evaluates the nominees sent to them by the governor's office. In a 90-day period, the investigation team of two to four members mails out 500 to 600 questionnaires and makes follow-up phone calls in a quest to determine each potential nominee's qualifications to be a judge
Mailings are balanced among various segments of the legal community. The investigation can include checking public records, reading transcripts, reading legal opinions or briefs and interviewing colleagues of the nominee. The investigation team also meets with the nominee.
The results of the investigation are presented to the full commission, which consists of 25 to 30 members depending on the year. The full commission discusses the facts learned in the investigation and assigns a rating to the candidate, by vote.
The possible ratings are: exceptionally well-qualified, well-qualified, qualified and not qualified. The rating for each nominee is sent to the governor's office with a report explaining the reasons for the rating. The evaluation process is uninfluenced by political or philosophical considerations. The investigation focuses solely on qualifications. (While on the commission, I had to vote several applicants as "qualified" hoping that the governor would not appoint them!)
The governor can appoint any nominee he wants, even one rated not qualified. For appellate courts, the JNE rating is made pubilc at the Judicial Appointments Commission hearing. For trial court judges, the rating is never made public unless the governor appoints a nominee found not qualified.
The governor's office receives hundreds, if not thousands, of applications each year from judges who seek elevation and attorneys who seek judicial appointments. Few of these applicants are personally known to the governor or his staff. The JNE rating and report provide the governor with valuable information about the applicant.
It is crucial that the JNE commission be uninfluenced by political considerations. A truly impartial report, focusing solely on factors relating to a nominee's qualifications, is the best service the commission can provide to the governor (and, indirectly, to the public.)
The commission's independence was threatened after the appointment of Justice Janice Rogers Brown to the Supreme Court. Its existence is threatened as a result of the State Bar dues bill veto. If the bar runs out of funds, the JNE commission ceases to function.
A current proposal to fund the JNE process from the state's general fund will save the commission. One has to wonder if the commission will be vulnerable to a legislature unhappy with the rating of a particular candidate. It is important to all of us that the JNE commission be shielded from political influences as much as systematically possible.
Judith M. Copeland is a San Diego attorney and two-time former chair of the JNE commission.