Secret Work of Senator and Little-Known Panel : Wilson Behind Naming of ‘Reagan Judges’

While they are called the “Reagan judges,” most of them are really the selections of California Republican Sen. Pete Wilson.

Wilson has screened and selected the last nine of the record number of 13 new Reagan appointees to the federal trial courts of Los Angeles.

To help him, he has set up an unusually secret judicial selection process, relying on an eight-member merit committee to make the initial recommendations for new judgeships.

The identities of the members of Wilson’s merit committee have been kept secret from most of the legal community for the last four years.

But while the committee’s selections have been generally praised as an outstanding group of new federal judges, the makeup of the committee itself has suddenly become controversial.

On the secret merit committee now are two federal judges who themselves were appointed by President Reagan, as well as a third former federal judge now serving on the California Supreme Court.

Wilson’s inclusion of federal judges on the committee was criticized by other leaders of the federal judiciary after the membership of the panel was learned by The Times.

Among the eight members of Wilson’s merit committee are U.S. 9th Circuit Court of Appeals Judge Cynthia Holcomb Hall and U.S. District Judge William D. Keller, both appointed by Reagan.

Keller also is reportedly the liaison to a second secret Wilson committee of political advisers who review the top recommendations to make sure no “political handicaps” have been overlooked. Wilson aides said this watchdog group rarely challenges the first group’s choices.

A third member of the merit committee is California Supreme Court Justice Malcolm Lucas, a Nixon appointee to the federal court in Los Angeles for 13 years. Lucas was also said to have been a member of the committee before he left the federal bench in 1984.

Neither Hall nor Keller would publicly confirm their membership on the committee, and Lucas declined to discuss the subject.

Both liberals and conservatives among the leading judges of both the district court in Los Angeles and the 9th Circuit appellate court challenged the propriety of having federal judges play any formal role in the selection of their own colleagues.

One of the complaints was that placing some federal judges in the role of power brokers over other judges was simply bad taste, creating a separate class of judicial politician that was harmful to judicial morale.

“I’ve never run into it before,” said one of the most conservative Republican 9th Circuit judges, previously a professor of judicial ethics. “Let me put it this way. I wouldn’t want to do it.”

“It’s highly improper to have some judges here who are deciding who gets on to court,” said one leading Democratic trial judge. “One judge shouldn’t owe his job to his colleague down the hall.”

Joining the judges in questioning the inclusion of federal judges on the committee was Gerald F. Uelmen, a liberal law professor at Loyola Law School who generally praised the committee’s choices for their overall judicial experience.

“That’s thin ice for a judge to be on the selection committee,” Uelmen said. “You can’t play political broker and be a judge at the same time. I think it’s very poor form. There’s also a real conflict situation there when you are passing on potential colleagues.”

Most important to some 9th Circuit judges was the question of the separation of powers between the judicial, legislative and executive branches of the government.

They said they believed that the federal judges on Wilson’s merit committee may have strayed from their judicial role into an executive function that was constitutionally off limits to them.

Advisory Opinion

The judges cited an advisory opinion that was part of the Code of Judicial Conduct for United States Judges on the propriety of giving evaluations on judicial candidates to any screening groups.

The advisory ruling did not address the specific issue of whether federal judges should be members of formal screening committees themselves. It encouraged judges to suggest names to such groups and to give recommendations when asked for them. But the advisory opinion then cited one of the basic canons of the Code of Judicial Conduct, which says a judge “should not lend the prestige of his office to advance the private interests of others.”

The ruling concluded that the judges making such recommendations should “avoid pleading for or endorsing the final choice and appointment” of any judicial candidate.

The response from Wilson and his top advisers was that there was nothing improper and that federal judges were among those best qualified to rate new appointees.

Judges in Good Position

“It’s not a valid criticism,” Wilson said. “I happen to think judges are in a good position to round out the evaluation process.”

John G. Davies, a San Diego lawyer who once was Wilson’s law partner, supervised the work of the twin selection committees, and he also labeled the criticisms unfair.

“The most important point is the committee doesn’t make the choices,” Davies said. “Their function is to get information, and federal judges are in a unique position to do that.”

One member of the merit committee who asked that his name not be used cited another advisory opinion of the same Code of Judicial Conduct on the propriety of judges appearing before either legislative or executive groups.

It said judges were in a unique position “to contribute to the improvement of the law, the legal system and the administration of justice.” It also advised that judges might properly consult with legislative or executive groups in private with respect to “matters relating to court personnel.”

“The key point is that we are merely the advisers,” the committee member said. “We’re not the people who actually make the selections.”

Considered Top Secret

Until the names of the merit committee members were learned, the group had been regarded as the most secret judicial selection committee that had ever been formed to pick new federal judges for Los Angeles.

Many of the best-informed lawyers and judges in Los Angeles knew only a few of their names and had only a vague idea about how the group actually functioned.

Wilson said there was no political purpose in keeping the committee so secret. The main purpose, he said, was to protect the committee members from being constantly assaulted by applicants.

“I think they should be reasonably anonymous,” Wilson said. “If their identity is known, they will get calls all night and day.”

The sudden controversy had no immediate impact on the committee’s continuing work.

As they met most recently in a downtown Los Angeles law firm, committee members discussed a list of a dozen candidates for a new judgeship that was opening in July.

Two-Hour Meeting

Their regular meeting place was a conference room in the offices of Hahn, Cazier & Smaltz, the law firm for which Davies works in San Diego. High above the city, on the 42nd floor of the Bank of America Tower, they met this time for about two hours, munching on peanuts and sipping Diet Cokes as they began their latest merit review.

The chairman of Wilson’s merit committee was Republican Superior Court Judge Ronald M. George, former supervising criminal judge in Los Angeles Superior Court. He was also president of the California Judges Assn.

Besides George and the three other judges, there were four attorneys on the committee, Sheldon Sloan, John Argue, Bruce Hochman and Thomas R. Malcolm. Hochman was the committee’s only Democrat and Malcolm served as a representative for Orange County, where he served as the Republican Party’s county finance chairman.

Describing their role in the selection process, members of the merit committee emphasized that their only instructions were to find the best candidates possible.

“Our mandate is excellence. Get the best people you can,” Hochman said. “So far the people we’ve felt are exceptionally well qualified have not been vetoed.”

Political Aspects

While the ability of the Reagan appointees was generally conceded, there were also some clear distinguishing political features to the group. The absence of Democrats was one. While Wilson didn’t rule out the addition of Democrats, it was not one of the primary goals of the committee.

Wilson has taken away the traditional minority role that Democratic Sen. Alan Cranston might have had in the past in naming some of the judges because Cranston had angered Republicans during the Carter years by not giving them their desired share of selections. The traditional ratio given to the opposite party was one out of every four new judges.

As Wilson described his own criteria for the judges, he made it clear that the political views of the candidates were an important consideration.

“Both in state and federal courts I have looked for strict constructionists who see the judge as construer of law rather than an activist,” Wilson said.

But Wilson said his political committee usually agreed with the selections of the merit committee. When pressed on the subject, he recalled only one time when his political group thought it had spotted something it viewed as a potential political liability.

“It doesn’t happen very often,” he said. “Only once. It turned out not to have substance.”

Not Actively Sought

Some Democrats had been considered by the committee, although Wilson aides said none were actively sought. One who was highly regarded, according to committee sources, was Robert M. Talcott. But one Wilson adviser said Talcott’s chances dropped after he became an appointee of Mayor Tom Bradley to the Los Angeles Police Commission in 1985, despite Talcott’s pro-police reputation there.

“If someone were a visible supporter of Bradley, that would certainly be a factor,” Davies said. “I don’t know what Pete would do. If you had two exceptionally well qualified candidates and one was a Bradley supporter, it would count against him.”

George said there were no political “litmus tests” applied to the candidates, adding that the committee had looked at between 70 and 100 candidates while selecting its first nine judges. Four were appointed earlier by former Republican Sen. S. I. Hayakawa.

“If one had to generalize, the judges we have recommended are all people with very substantial trial experience, hard-working, well versed in the law, good judicial temperament,” George said. “I think they are all persons whose records show they have an interest in society’s rights.”

Elaborate Process

Ira Goldman, Wilson’s counsel and his chief Washington staff member on judicial matters, said Wilson’s selection process was probably the most elaborate in the nation. He said a third of the U.S. senators had no committees, an equal group relied on ad hoc advisers and another third relied on committee systems of one kind or another.

The final decisions were reviewed in Washington by Wilson and himself, Goldman said, with Davies also sometimes in attendance.

“There is obviously great deference to the work of the screening committees,” he added. “We’ve never gone around them. We’re working with the committees.”

Wilson’s watchdog group still remained a partial mystery to many, consisting of a small group of Wilson’s political supporters. One member of the group was Waller Taylor II, a conservative Los Angeles lawyer with Richard Nixon’s former law firm. The most visible member was Charles G. Bakaly Jr., a senior partner at O’Melveny & Myers.

Committee Credited

Bakaly gave the merit committee the credit for most of the work and spoke of the actual selections more in terms of their judicial experience than their politics.

“We actually get a list of people ranked by the merit committee,” he said. “Most of the time, we know them. We might call some people. We don’t interview the candidates. The political committee doesn’t suggest names. What we’re really trying to do is have hard-working judges.”

Bakaly said there were no formal meetings held by the political committee.

“We don’t do the input,” he said. “We look at them and see if there are any political handicaps to the senator. It’s primarily a question of getting good, solid judges who are following the law.”

Goldman said the committees did look into the views of the potential judges on such legal and philosophical questions as the importance of following legal precedent, but he said there were no “litmus test” questions by anyone involved in the Wilson selection process on such matters as abortion, school prayer and the death penalty.

“First of all, we have district court judges. How many abortion cases are there going to be?” he asked. “Secondly, we don’t want a judge who is result-oriented. That is an activist judge.

“The senator feels very strong about the death penalty. Frankly, I would think that all these guys support it, but damned if I know.”