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Judicial Nominees and Practical Experience

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Five years ago, California Governor Arnold Schwarzenegger nominated former state Senator Charles Poochigian to the state Court of Appeal.  He was evaluated by the State Bar Commission on Judicial Nominees Evaluation and given the lowest rating, Not Qualified.  This was not because of his personal characteristics.  On the contrary, reported Kenneth Ofgang in the Metropolitan News-Enterprise at the time,

JNE Commission Chair Jonathan Wolf of San Francisco wrote to the chief justice that the nominee "is intelligent, diligent, and articulate...is an independent thinker, courteous, and even tempered...works well under pressure and demonstrates courage, compassion, and common sense...is a hardworker...and...is committed to public service."
So what was the problem?  There was one and only one.

But Poochigian's legal background does not qualify him for the appellate bench, Wolf said, explaining:

"He had not practiced law for approximately 21 years and had not litigated a case in approximately the same amount of time. Moreover, he has no jury trials and no criminal law experience."

The commission did consider Poochigian's experience in the Legislature, including his work on criminal law issues as vice chair of the Senate Public Safety Committee, but did not find this sufficient, Wolf related.
Why bring this up five years later?  Governor Jerry Brown recently nominated Stanford Law Professor Mariano-Florentino Cuéllar to the California Supreme Court.  His CV, while otherwise impressive, is devoid of practical legal experience.  Does the JNE Commission have a problem with that?  Oh, heavens to Betsy, no.  "A state bar evaluating commission gave Cuellar ... its highest rating: exceptionally well qualified," reports Maura Dolan in the LA Times.

Does an otherwise well qualified nominee with little, no, or stale practical legal experience deserve the highest rating or the lowest?  The answer, if the rating is done by the California State Bar's commission, depends entirely on political alignment.

Claims that removing judicial nomination functions from elected officials and turning them over to bar committees will remove politics from the process are complete hokum.
The good news, in California, is that the Bar's evaluation commission is only advisory.  If the governor is willing to stick by his nominee, the actual decision is made by a separate Commission on Judicial Appointments, which the Bar has no role in selecting. 

Nominees less prominent or less politically connected can be sunk by politically motivated low JNE ratings, but Schwarzenegger stuck by Poochigian, and he was unanimously confirmed by the CJA (which included, we should note, then-AG Jerry Brown).  Professor Cuéllar was approved yesterday.  He goes on the ballot in November for a yes/no vote by the people.  To my knowledge, no nominee in these circumstances has ever been voted down.

States with nominating commissions controlled or dominated by the Bar need to get rid of them as soon as possible.

1 Comment

While I am hopeful that simply being smart will carry the day, that is the exception rather than the rule in my experience.

Justices who have never known the law from anything but politics and policy can be dangerous. Justices who have never practiced law in the courts have no perspective on a major aspect of their job. As a practical matter, this Justice at age 41 who has never litigated a case in 16 years of being a lawyer (13 as a professor, 3 as a judicial clerk and policy positions right out of law school at age 24-27) will be passing judgment on the actions on those who have. Hopefully he is truly humble enough to recognize that trial court ideals and reality can be often far removed from each other.

I am worried that this simple absence of experience and the hubris that can sometimes come with advancement without having done the work will damage the standing of the CA Supreme Court and weaken their product in the form of well reasoned and practically useful opinions. The fawning over this man because of his life story is ridiculous. He has an impressive resume for certain positions and his upbringing was certainly challenging, but he is still just a man. The true test will be what he does now. I just wish he had done any of it before he was called upon to judge it.

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