JNE is part of the process ... - by JOSEPH LIPPER
... and so are lawyers and politicians - by PETER KAYE

The recent controversy over its rating of Justice Janice Rogers Brown has thrust the Commission on Judicial Nominees Evaluation into the spotlight.

Informally known as the "JNE Commission," this statewide volunteer body of lawyers and public members is the State Bar's designated agency to investigate and rate applicants before the governor can appoint.

"JNE may not be perfect, but I believe that it is the best that humans can devise," says 1993 JNE chair Philip Bartenetti, a Los Angeles civil practitioner.

JNE commissioners are appointed by the State Bar Board of Governors. They give about 55 days a year of their time, no less than 24 days in actual meetings with long, hard agendas.

In 1996, there are 27 members -- 21 lawyers and six public members. Required by law to be broadly representative of California's ethnic, gender and other factors, the commission has four African-Americans, three with Hispanic surnames, two with Asian surnames, one Indian, one Native American and 16 Anglos.

"From the first day," says Bartenetti, "it is drilled into commissioners that we are dealing with perhaps the most important career steps in a person's life. The commissioners take their jobs very seriously and work conscientiously to make sure all factors are investigated and weighed."

JNE cannot nominate or appoint judges. The governor does that.

But, working in strict confidentiality, the commission probes far, wide and deep -- querying hundreds of lawyers and judges -- in gauging the judicial qualifications of candidates. It concludes its work by rating the applicants extremely well qualified, well qualified, qualified or not qualified.

The commission's statutory power to review applicants stems from a 1978 occurrence when Republican Lt. Gov. Mike Curb, acting as governor in the absence of Democratic Gov. Jerry Brown, appointed a judge. Brown rescinded the appointment.

But the next year, the legislature enacted §12001.5 of the Government Code, requiring the governor to submit names for a 90-day evaluation period.

The law allows the governor to appoint someone if the 90 days pass without JNE action. He also can appoint a not qualified applicant, but the State Bar Bar may then make that fact public. Gov. Pete Wilson's appointment of Janice Rogers Brown to the Supreme Court marked the first time an applicant rated not qualified was named to the appellate bench.

The controversy over that appointment unleashed a barrage of criticism of the commission.

"The statute establishing the JNE Commission programs it for low effectiveness," says a scholar of judicial performance. "Its only power is that the State Bar may make an announcement should the governor appoint someone the commission found unqualified."

And a state official close to the judicial scene told members:

"The perception is held by many people that you are not fair, that you dwell too much on the negative comment received about the candidates and not enough on the positives."

It's too bad that confidentiality rules prevent the public from watching JNE at work because it would see:

• How the very diversity of the members insures all points of view are heard and fairness prevails.
• How members conscientiously study the Personal Data Questionnaires (PDQs) and investigator reports to make thorough and thoughtful evaluations.
• That there is very little "bloc" mindset. Frequently, the toughest JNE questioner of a candidate is from the same ethnic or gender group.

True, the rules require JNE investigators to summarize the negative comments from the candidate's peers. But negatives are presented without weighting, and the candidate has a full opportunity to address and refute them. Also, all the positives are summarized to ensure the process has balance.

Official tabulations from 1990-94 show that of more than 1,200 candidates evaluated, about 25 percent each year are found to be not qualified.

A sampling of JNE 12 or 13 years ago showed that the percentage was roughly the same then. Considering that the makeup of JNE changes significantly each year, the 25 percent seems to be the norm.

Joseph Lipper, a retired public relations executive and former State Bar governor, recently was reappointed to the JNE Commission.

As recently as 1995, there was enthusiasm for a system of selecting judges that would, in effect, remove politicians from the process. Instead, an independent commission of lawyers and non-lawyers would recruit and screen candidates. The governor would make his choice from the commission's list.

Known as the Missouri plan, this system was endorsed by the American Bar Association in 1937. It's been adopted in 34 states and was recommended recently by the Commission on the Future of California Courts.

What a difference a year makes.

Now, Sen. Robert Dole, the certain Republican nominee for president, wants to exclude the ABA from the screening process for federal judges.

And Gov. Pete Wilson's displeasure with the state bar's screening group boiled over when the Judicial Nominees Evaluation Commission rated Janice Rogers Brown, his nominee for the Supreme Court, as unqualified.

Stated simply, the politicians want to exclude or diminish the role of the lawyers.

Either extreme is unrealistic.

Unquestionably, electoral politics must be considered. If anything, campaigns should focus more on the role of a president or governor in choosing judges.

Voters should know how the candidates stand on all legal issues -- tort reform, juvenile justice, legal aid and a whole lot more. Right now, discussion centers on such platitudes as the death penalty and which candidate is tougher on crime.

It must be made clear that liberals appoint liberals and conservatives appoint conservatives to the bench. And that judges are around a lot longer than the president or governor who appoints them.

As Richard Nixon said in 1969:

"Our chief justices have probably had more profound and lasting influence on their times and on the direction of the nation than most presidents have had."

But if politicians must stay at the center of the selection process, so should the legal profession.

After all, who are best able to evaluate potential judges than the men and women who appear before and work with them every day? Whose knowledge extends beyond ideology to such important considerations as legal skill, experience and temperament?

Senator Dole's suggestion that the ABA be replaced by a panel of crime victims, cops, prosecutors and legal scholars seems more a political palliative than a sensible solution.

Screening committees are a check on the appointment powers of the executive. This is especially true at the state level where there is no legislative review of judicial nominees.

Right now, JNE and the Commission on Judicial Appointments are the only such checks. The present commission consists of three Republicans, so its approval of Justice Brown was something of a foregone conclusion.

But JNE's "NQ" rating for her put the commission on the hot seat. This is not a new role. A measure of JNE's even handedness may be that it has infuriated all three governors who've been in office since its inception in 1978. Another recommendation is the generally high quality of California judges.

Even without the impetus of recent events, it may be time for the State Bar's Board of Governors to take a look at JNE. After all, we're dealing with a 1978 model that could use some retrofitting.

One suggestion is to have JNE recommend or not recommend judicial candidates rather than rate them qualified or not qualified. A more substantive change would be to have JNE members appointed by someone other than the Board of Governors.

Peter Kaye is a San Diego journalist and public board member appointed by Gov. Wilson.

The governor sends the State Bar a batch of Personal Data Questionnaires (PDQs) of applicants he wants evaluated. The JNE chair assigns two commissioners to investigate (three for appellate courts).

Candidates are notified of impending evaluations, and hundreds of ratings questionnaires are mailed to judges, DAs, public defenders and attorneys who practice in the same county or same area of law.

Addressees are asked to rate applicants (if they know them) overall for temperament, ethics, experience, ability, bias, etc.

Responses are analyzed, follow-up phone calls are made, ratings are compiled and a personal interview with the applicant is held.

After the interview, which must be recorded, the investigating commissioners report to the full commission which has had time to study the PDQs. A vote is taken and a report sent to the governor detailing the rating ascribed (exceptionally well qualified, well qualified, qualified and not qualified).

The rest is up to the governor.