Thursday, January 26, 2012
IN MY OPINION (Column)
Better Selection Process Would Give California Better Judges
By GERT K. HIRSCHBERG
Lawyers should, but not must, read every opinion published daily by the California appellate courts commonly known as Advance Sheets. The reason is rather obvious. One would not seek medical attention from one’s doctor which represents the state of the art as of 1950.
California’s lawyers are not really treated to the best of what the opinion writers can and should produce. There are reasons. These have not heretofore been articulated, except with respect to the Supreme Court by a lone voice, i.e., Professsor Gerald Uelmen at the Santa Clara University School of Law in his annual report.
The reasons involve the selection process for all California courts, not just the appellate bench.
We are appointing good judges in California but not nearly as good as the California Bar membership can produce.
Our appointing process is not just flawed, it is unfair. True, one who seeks to be in the judiciary need not seek an appointment. One can run against an incumbent. What are the odds in seeking to unseat a sitting judge? They are roughly the same as Charles Manson getting a presidential appointment to become Secretary of Commerce. Even an incumbent jurist whose wife fell overboard from his yacht the morning after their marriage, never to be seen again, was immune from a successful re-election attack.
What then is left as a chance for a judicial career? Either a contest where the incumbent does not seek reelection (a rarity) or an appointment by the Governor. California’s governors greatly value and protect their gubernatorial powers of appointment. They are the lifeblood of the political powers of a governor.
It is true that submission of a potential appointee to the JENY (Commission on Judicial Nominees Evaluation) is a prerequisite to an actual appointment. Even this requirement has been historically politicized by the Governor.
Bill Kurlander, a former State Bar Governor and one-time chairperson of the JENY Commission, has facetiously complained that the then governor of California submitted to the Commission every person’s name who had ever politically contributed five dollars. Since submission to the Commission in no way assures an actual appointment, this type of multiple submission is obviously a joke.
Appointive powers have been greatly abused by California’s governors. California is not unique in the powers ofjudicial appointments delegated to a governor. A perusal of the power of judicial replacements in other jurisdictions has disclosed similar methods and abuses.
All states suffer from the disadvantages produced by the unlimited and unrestrictive powers of a governor. Some states require an election which seems an equally implausible solution.
Some European countries prescribe a specific appointment program to be proceeded by academic training. Perhaps the best method would be some limitation of gubernatorial powers.
No better example of the gubernatorial appointive process can be found in the inordinate number of appointments to the judiciary of prosecutors.
In a society that values law and order, no governor can resist the electorate’s satisfaction with a prosecutorial appointment. Aren’t defense counsel, civil rights lawyers, employment lawyers equally qualified?
Copyright 2012, Metropolitan News Company