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While writing this story about the secretive world of judicial nomination, I spent a lot of time talking to a fascinating lawyer named William Kopeny.
Kopeny is the current chairman of a group called the Commission on Judicial Nomination Evaluation, which is less formally known as the JNE commission (pronounced “Jenny Commission”).
The JNE Commission, as I pointed out in my story, is an independent forum made up of current state Bar members, retired judges and members of the public. The role of the commission is to evaluate the credentials of applicants for judgeships. The commission spends a long time vetting each of the applications it receives from the Governor’s Office.
The commission is something of a toothless body, and Kopeny readily admits that his task at the commission is a rather thankless one. Though it has the power to rate a candidate as “not qualified” for a judicial appointment, the governor doesn’t need to heed the commission’s recommendation and can go ahead and appoint someone the commission has found to be unqualified to be a judge.
If the commission wants to, it can instigate a process that could result in the fact that the candidate was unqualified becoming public information. Essentially, the commission asks the Board of Governors of the state Bar to make the issue public by sending out a press release. But the Board of Governors can also hush the whole thing up if it wants to, so as not to embarrass the governor.
During Kopeny’s reign as chairman, the commission has faced that situation at least once. In that case, the judge’s name was made public and a big stink was made in the media about the judge’s appointment. But, as Kopeny pointed out, by the time the Board of Governors has gone public with a candidate’s lack of qualifications, that applicant’s usually already been sworn in as judge. Indeed, there’s no legal way to stop a nomination before it actually happens.
One other thing Kopeny told me that I found interesting is a brief history of the commission’s founding.
Back in the late 1970s, California had a liberal Democratic governor, Jerry Brown. At the same time, the state had a very conservative Republican lieutenant governor, Mike Curb. Now, when the governor leaves the state — something Brown did a lot in the late 70s and early 80s as he sought the Democratic candidacy for president — the lieutenant governor, as second-in-command, becomes the acting governor.
On one of Brown’s many sojourns out of the state, Curb took it upon himself to nominate a conservative attorney for the Court of Appeals. Before that attorney could be approved and sworn in, Brown came back across the state line and quashed the nomination. The attorney never became a judge during Jerry Brown’s term in office.
But the event spurred the state Legislature into action. Soon after, the state Legislature created the legislation that founded the JNE Commission. The legislation provided that no governor can appoint anyone that hasn’t first been vetted by the JNE Commission, which has, by law, a maximum of 90 days to consider each applicant.
Now, of course, the legislation had to be signed off on by the governor. And, despite the governor’s previous clashes with the judicial nomination process, the Legislature presumably knew that the legislation could potentially lead to embarrassing confrontations between the Governor’s Office and the JNE Commission.
Kopeny, who’s spent a lot of time studying this issue, guesses that the Legislature sweetened the deal for the governor by inserting the rule that the JNE Commission can’t, itself, make a judge’s lack of qualifications public.
By making it a requirement that the commission must ask the state Bar’s Board of Governors — a body that’s arguably more likely to be more convinced by the governor to keep mum — to take the issue public, the Legislature probably made the whole deal more palatable for the governor to sign, Kopeny said.
Of course, in doing so, the Legislature also knocked out many of the commission’s teeth.