Back in February, I wrote this story about the secret world of judicial appointments.
A new bill currently making its way through the California Legislature is taking aim at the secrecy of the judicial nomination process. A hat-tip to Donna Frye for pointing out the legislation to me.
First a re-cap:
I wrote the story in February because there were rumors flying around that Bill Gentry, once a candidate for city attorney, had been offered a judgeship in order to get out of the race and clear the way for Jan Goldsmith, considered by many a stronger Republican candidate.
I wanted to look into Gentry’s appointment process, to figure out if there was any truth to the rumors. What I discovered was that one can find out very little about the reasoning behind a governor’s choice for a judicial appointment. Basically, the whole process is shrouded in the sort of secrecy that reminded me a lot of some of the archaic legal processes of England where I attended law school.
Under the current system, the governor doesn’t have to tell anyone why he or she has made a judicial appointment. Each judicial nominee is vetted by a group called the Commission on Judicial Nominees Evaluation, commonly known as the JNE Commission, but the governor isn’t at all beholden to the commission’s decision.
Essentially, the governor appoints whomever he or she wants.
The governor does, however, via his or her judicial appointments secretary, do some information gathering on each judicial nominee. As I pointed out in my story:
The Governor’s Office sends each application to a committee in San Diego, the Judicial Selection Advisory Committee. The identity of the members of that group is secret, as is the number of people on the committee and the process by which they assess the applications sent to them. A number of members of the local legal and political communities said District Attorney Bonnie Dumanis is a member of the committee, but the Governor’s Office would not answer any questions about the group.
One part of the new bill takes aim at this secrecy. A wordy amendment to section 12011.5 of the Government Code would require the governor to:
collect and release the names of all persons who have been provided judicial application materials or related documentation on one of more judicial applicant
I called Bill Kopeny, the current chair of the JNE Commission, and asked him what he thinks of the bill.
Kopeny said he doubts that section of the bill will get through the Governor’s Office. He foresees a veto. And he wasn’t sure of he agreed with the concept of, as he put it, “corralling the work of consultants to the executive office.”
“This is an effort, a stab in the dark, at trying to require transparency of a process which is traditionally within the executive branch of the government,” Kopeny said.
And Kopeny said the wording of the bill leaves plenty of room for secrecy and back-room dealing in the whole judicial appointments process. The legislation only takes aim at people who have been provided with documentation — i.e. people who the governor’s office sends questionnaires or requests for references.
In reality, the gathering of information on potential judges doesn’t work like that, Kopeny said. The governor’s judicial appointments secretary routinely calls influential lawyers in different jurisdictions to collect information on potential judges, he said.
Kopeny said that’s the way things should be, and said he thinks the current judicial appointments secretary is doing a great job.
“I don’t think there’s a clear answer as to whether it’s a good idea, but the bottom line is that I’m not even sure if it’s legal and I’m not sure if it’s necessary,” Kopeny said.