Secrecy in selecting judges

It's excessive

by RITA GUNASEKARAN

It's violated

by SEAN WALSH

Almost four years ago, I received a phone call inquiring about my willingness to serve on the Commission on Judicial Nominees Evaluation (JNE). Before accepting, I consulted every prior JNE member I knew. They all described JNE as the most rewarding professional activity in which they had ever participated. Notwithstanding recent events, I would say the same thing to any potential JNE Commissioner today.

JNE was created by statute in 1979 for three distinct reasons: (1) to protect judicial candidates from rumor-mongering and innuendo; (2) to protect those who express reservations about a candidate from legal reprisal or other adverse consequences; and (3) to balance a governor's personal and political knowledge of a candidate with as much information as possible regarding a candidate's qualifications.

The legislature mandated that the 27 JNE commissioners be drawn from all corners of California and a wide range of legal specialties and private enterprises. This year's commission certainly fulfills that mandate.

While the commissioners are often dynamic, the process of evaluating judicial nominees is necessarily somewhat sterile. For each candidate's evaluation, several hundred questionnaires are mailed to members of the legal community likely to know the candidate professionally.

JNE members can rely only on information obtained through the questionnaires and on other data supplied by the candidate, in making their reports.

The painstaking process of analyzing, authenticating and evaluating the information received entails a minimum time commitment of 55 working days per member per year.

JNE members do not receive financial compensation for their time.

Perhaps the most critical part of JNE's mission involves protecting judicial candidates from the kind of character assassination which candidates from the federal judiciary have been increasingly subject to for the past decade.

To this end, JNE commissioners interview by telephone every person who submits a negative comment.

It is worth emphasizing that we only consider negative comments in signed questionnaires by individuals willing and able to articulate a factual basis for their signed opinions.

We routinely weed out baseless allegations.

There has been no more vivid illustration of the ease with which the unscrupulous and irresponsible can tarnish a reputation than the skillful media campaign waged against the JNE Commission in recent weeks.

Many legal commentators have suggested that the legislature has bound JNE with excessive rules of secrecy. I wholeheartedly agree.

Currently, JNE cannot make its findings public until the public hearing on a judicial appointment, even if the appointment is announced by the governor several weeks in advance.

Speculation inevitably fills the vacuum, and, human nature being what it is, the speculation is generally more damaging to the candidate than the report itself.

The problem could easily be eliminated by allowing the JNE Commission to publish its report as soon as a judicial appointment is announced. I urge the governor's office to support this reform in the legislature.

Much ink has been spilled on the issue of the confidentiality JNE extends to those who submit negative comments about a candidate.

I have struggled with this issue for the past four years. The present system, under which a JNE commissioner summarizes the substantial negative comments and provides the candidate with an opportunity to respond, does not allow the candidate to confront his or her accusers.

Unfortunately, most attorneys fear that criticizing a judicial nominee will result in personal and professional reprisals. The venomous attacks leveled against JNE in the past month can have done little to allay those fears.

In this way, JNE's foes have testified more eloquently to JNE's value than I ever could.

Rita Gunasekaran, a Santa Monica attorney, is chair of the Commission on Judicial Nominees Evaluation.

The California Commission on Judicial Nominees Evaluation (JNE) is charged with evaluating all state judicial nominees and submitting its confidential evaluation to the governor. The commission was founded in 1980 as a non-political, independent group of the State Bar that would provide the governor with an unbiased evaluation of every judicial nominee based on his or her merits. In theory, the commission was established to assist the governor with his judicial appointment decisions by offering insight into a candidate's judicial temperament and skills -- not to engage in politics with the nominee.

Gov. Wilson -- or any governor of this state -- simply does not have the opportunity to devote long, in-depth and dispassionate analysis of each and every judicial nominee. Therefore, a body like the JNE Commission was created as a non-partisan, non-biased group to provide the governor with the information he needs to ensure the appointment of the best people.

The concept of such an "advisory" commission is a sound one. And, if the system worked as it was intended to, it would prove helpful to the governor in choosing among highly qualified and experienced candidates.

The commission's recent "not qualified" rating of Supreme Court Justice Janice Rogers Brown and the sequence of events following Brown's nomination pose several disturbing questions about the integrity of the commission and how it conducts its business and adheres to its strict rules of governance.

In the case of Janice Rogers Brown, the governor spent nearly four years working with her on a day-to-day basis. Together, they tackled some of the most difficult legal issues the state has ever faced.

In this case, the governor did not rely on the commission's evaluation of Justice Brown because he didn't need to -- he knew the candidate far better than those who had conducted her evaluation could have.

His relationship with Justice Brown enabled him to judge this candidate's qualifications far beyond the ability of the JNE Commission. She attained a rare position with Gov. Wilson -- his total confidence in her abilities.

The commission's "not qualified" rating of Justice Brown reflects a fundamental misunderstanding of what it takes to be a Supreme Court justice. The evaluation is simply indefensible. As the governor noted when he nominated Justice Brown to the state's highest court, the correlation between prior judicial experience and fitness for the functions of the Supreme Court is zero.

Furthermore, over the years -- and surrounding the Brown nomination -- questions have been raised about the commission's ability to keep its deliberations secret. The evaluation process is supposed to be kept confidential and only the candidate and the governor have the discretion to discuss publicly the commission's conclusions prior to any confirmation hearings.

While the governor did not adhere to JNE's evaluation of Justice Brown for many reasons, there will be times in the future when a governor will need to rely on the advice of a group like the JNE Commission. And he or she will expect -- and must demand -- that the commission show integrity by adhering to its rules and carrying out its statutory duties fairly, accurately and confidentially.

The disgraceful activities that have emanated from the commission should cause Californians to stop and ponder whether JNE needs a complete house cleaning or needs to be replaced by an alternate advisory body.

This governor will not tolerate a whitewashing of the leaks and public disregard of its own rules by the JNE Commission in its review of Janice Rogers Brown. Gov. Wilson has demanded a full and thorough review and State Bar President James Tow-ery has promised "there will be no aspect of JNE's operations that will not be examined." The bar has said it will solicit suggestions from the governor as well as from judges, past commission members and others.

JNE's reputation has been badly damaged. Can the integrity be reestablished? Or should the commission be scrapped? Time will tell.

Sean T. Walsh is Gov. Pete Wilson's press secretary.