Metropolitan News-Enterprise


Friday, December 5, 2014


Page 7



Lamar W. Baker: Bereft of Credentials for the State Appellate Bench, He’s Apt to be Appointed




He lists his address as 1600 Pennsylvania Avenue, in the District of Columbia.

No, this is not about Barack Obama.

Also using that address—appearing in his listing on the State Bar of California website—is Lamar W. Baker. He’s a special assistant and associate counsel to the president.

Comments on Baker are being sought by the State Bar Commission on Judicial Nominees Evaluation. Gov. Jerry Brown is considering an appointment of Baker to the Court of Appeal in either the First District (headquartered in San Francisco) or here in the Second District.

Admitted to practice in 2002, Baker practiced in his early years with the Santa Monica firm of Strumwasser and Woocher. That’s a firm with a definite political bent; its clients include the Democratic National Committee and it served as election counsel in the California Obama/Biden campaigns in 2008 and 2012.

Frederic D. Woocher of that firm advises:

“Lamar began working at our firm in September 2002, after he completed his clerkship on the Ninth Circuit.  He left in January 2005 to take a position in the US Attorney’s office.”

More recently, he went to Washington to be a legal adviser to the president. The White House press office said late yesterday it was unable to provide the date he went to work there on “short notice.”

Not many attorneys who confine their practice to the state courts will be able to fill in the JNE questionnaire, so few having encountered the prospective appointee.

Baker is only 37 years old and has no judicial experience. So, he would be a typical Brown appointee to the appellate bench.

Brown in 2011 appointed Boalt Hall Associate Dean Goodwin Liu to the California Supreme Court. (Technically, he nominated Liu, subject to confirmation by the three-member Commission on Judicial Appointments…but unfit nominees—such as Rose Bird—do get confirmed; whether by a tradition of laxity or an unwillingness to buck the governor, a nomination is tantamount to an appointment.) Liu was 41 and had no previous judicial experience.

Earlier this year, Brown placed Stanford Law School professor Mariano-Florentino Cuéllar on the state’s high court. The new justice is 42 and had no prior judicial experience.

The governor’s most recent choice for the Supreme Court is Deputy Assistant U.S. Attorney General Leondra R. Kruger, 38. And guess what? She has no judicial experience.

Admitted to law practice in California on March 1, 2002, she has been on inactive bar status since Jan. 30, 2009. Her confirmation is pending, and—regrettably—does not appear to be in doubt.

Baker would fit the profile of a Brown appellate court appointee in other ways…that is, aside from youth, being a stranger to the state court system, and not having served on the trial court bench…oh, and being, like Liu, Cuéllar and Kruger, a Democrat.

Liu, Cuéllar, and Kruger each received a law degree from Yale. Brown also happens to have been a graduate of the law school there.

Glory be! What a coincidence! So is Baker.

An astute friend of mine commented to me that Yale is proficient in turning out “academicians and theoreticians,” but not able judges.

I’m certain that a perusal of biographies of California judges would show that there are exceptions. One Yale Law School graduate who comes to mind and whose decisions reflect common sense and pragmatism is Court of Appeal Justice Jeffrey W. Johnson of this district’s Div. One. (Appointed in 2009 by Gov. Arnold Schwarzenegger, he was a sitting judicial officer, as a U.S. magistrate judge, and had handled state-court cases as an attorney with Mannatt Phelps.)

Actually, for anyone to have attained a law degree from Yale is prestigious, and can hardly be viewed as a drawback for an applicant for a state judicial post…unless, of course, that person, following schooling in philosophical approaches to the law, has failed to be involved in the actual practice of law in the state courts.

And so, with respect to young Mr. Baker, a denizen of the District of Columbia, to whom California courts are now in foreign terrain, to what extent should we be dazzled by his law degree from Yale?

I can remember back to the days when three of the seven members of the California Supreme Court—Stanley Mosk, B. Rey Schauer, and Paul Peek—were alumni of the Southwestern University School of Law (now known as Southwestern Law School). I suspect that today, there is a presumption in the Brown Administration against appointing anyone to the appellate courts who has matriculated at that institution, or others like it. That presumption just might not be a rebuttable one.

Of Brown’s appointees to the Court of Appeal in this district since his return to the throne in 2011, three are now sitting: Frances Rothschild, elevated from associate justice to presiding justice of Div. One,  and then-U.S. District Court Judge Audrey B. Collins and then-Los Angeles Superior Court Judge Brian M. Hoffstadt, named as associate justice. All earned their law degrees at UCLA.

Los Angeles Superior Court Judge Lee Edmon, a former presiding judge of the Superior Court, and an illustrious one, is a graduate of the University of Illinois College of Law. She’s slated to join the Court of Appeal Jan. 5.

It seems likely that Court of Appeal Justices Judith Ashmann-Gerst, appointed by Gov. Arnold Schwarzenegger, and Madeleine Flier, named to the court by Gov. Gray Davis, would not have received appointments from Brown, were they still on the Superior Court. Ashmann-Gerst’s law degree is from Whittier College of Law and Flier’s is from the University of San Fernando Valley College of Law.

It used to be that nearly every judge in California was a white male. This was not altogether the product of discrimination, given that the bar was comprised mostly by white males, but to the extent qualified women and minorities were bypassed for appointment, it was, of course, wrong.

When Jerry Brown came into office the first time, in 1975, being a white male became almost a disqualifying factor. That, too, was wrong.

He appointed women and minorities, but many of those he selected were put on the bench simply because they were women and minorities, and lacked the capacity to serve as jurists.

The Korean American community in Los Angeles communicated to him its concern that there were no Korean American judges, and it wanted that remedied. While the Korean American Bar Association today boasts a large membership, there were few Korean American lawyers then who had been members of the State Bar for 10 years, a state constitutional requisite for appointment to the Superior Court (or higher). Kenneth Byung-Cho Chang, who met that qualification, was sought out, located in Korea, and appointed—notwithstanding that he had cancer. Moribund, he had come to work only three times in his last year in office. He was defeated at the polls in 1980, and died two years later.

At a State Bar convention, I passed by an African American whose face was familiar. Mistaking him for someone else, I greeted him by saying, “Hello, judge.” He advised me he wasn’t a judge. Reflecting on Brown’s appointment policy, I responded: “You will be.”

And sure enough, he was.

In 1988, he drew an election challenger, and the Los Angeles County Bar Association rated the judge “not qualified.” That judge, Henry Patrick Nelson, survived the challenge, but resigned on the eve of Commission on Judicial Performance hearings that surely would have resulted in his ouster from the bench.

Brown appointed a political chum, Rose Bird, as the state’s chief justice notwithstanding her lack of judicial experience. Her legal background was comprised of having been a deputy public defender in Santa Clara County. Disputatious and revengeful, she created disharmony within the state Supreme Court and beyond. She and two other Brown appointees and fellow liberal ideologues, Joseph Grodin and Cruz Reynoso, were turned out of office by voters in 1986.

Certainly, Brown did make a smattering of merit appointments. However, of the seven persons he placed on the California Supreme Court in his first incarnation as governor, only one—Court of Appeal Presiding Justice Otto Kaus—was in that category.

Surely, race should not be, ever, a factor in choosing judges.

It simply doesn’t relate to a person’s capacity to serve in a judicial role.

Yet, the reality is that to Jerry Brown, being a non-white is a huge plus for a seeker of a judgeship.

And so we return to young Mr. Baker. He is almost certain to be appointed to the state’s intermediate appellate court—and would probably be under consideration for the Supreme Court were there any more vacancies. He, like Kruger, is an African American.

He has all the qualities that Brown is looking for in a justice.

And what he lacks—the know-how and wisdom that can only be derived from experience—is of no concern to the man once known as “Governor Moonbeam.”

He’s not called that anymore. But the lunar influences on him are as strong as ever they were.

Also apt to be named to the appeals court, strictly for reasons of affirmative action, is Los Angeles Superior Court Judge Luis Lavin. He’s openly gay. That, and his law degree from Harvard, are probably enough to cinch an appointment—unless the governor views him as being too old (he’s 55) or holds against him his judicial experience.

From what I’ve seen, Lavin  is a result-oriented jurist, lacking in intellectual honesty. But that sort of thing would, of course, be of no interest to Brown.

Late yesterday, I learned that another prospective nominee is Bradley S. Phillips of Munger Tolles. No judicial experience. Law degree from Yale.

From what I’ve witnessed, he lacks scruples—but, again, what does Brown care about that?

He wants persons who share his ideology, who preferably aren’t white, and are young enough that they’ll be in office a good long time.

Ironically, if someone else were governor and applied Brown’s criteria, Brown, a 76-year-old Caucasian, could not appointed to the bench.

There are many on the trial courts who have done their work and honed their skills, each day gaining broader knowledge of California law. It is not exclusively from this pool that appellate justices should come—academia and the Legislature can serve as training grounds, and provide perspectives trial judges lack—but it is primarily from the trial bench that selections should be made if appellate decisions are to be rendered based in realities, not theories.

And these selections should be made on account of proven skills and diligence, not race, gender, or sexual orientation.

But Brown has no interest now, and never has, in serving the public’s need for a solid judiciary.

One does have to wonder if Brown is, for some reason, trying to do favors for Obama.

Obama in 2010 nominated Liu to the Ninth U.S. Circuit Court of Appeals. But the nomination languished, and on May 25, 2011, Liu withdrew himself for consideration. Brown came to his rescue, appointing him to the state Supreme Court two months later.

Cuéllar was a member of the Obama-Biden transition team in 2008 and served from 2009-2010 as a special assistant to the president for justice and regulatory policy and has performed other chores for the president.

Kruger is in the U.S. Department of Justice’s Office of Legal Counsel which assists the attorney general in advising the president.

With JNE questionnaires now going out on Baker, the question arises as to why Brown is being so accommodating to the president.

Brown unsuccessfully, and quixotically, sought the Democratic nomination for president in 1976, 1980, and 1992. He has recently disclaimed any interest in running in 2016. For a politico who has disclaimed an interest in seeking an office to later seek it would hardly be an unprecedented phenomenon.

Does Governor Moonbeam have the thought in his cranium that he can, through his judicial appointments, so please the president as to win an endorsement from him to be his successor? That would be a pretty wild theory, were it not for the wildness of Brown’s thinking and actions.


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