A Better Way to Confirm Justices : Present Process Works Against Serious Scrutiny of Nominees

Following the controversy that was sparked by the removal of three justices from the California Supreme Court, a number of leaders across the state are calling for constitutional amendments to the system of judicial selection and confirmation.

We agree. As representatives of People for the American Way and the National Organization for Women, we testified recently before the state Judicial Performance Commission concerning the qualifications of one of Gov. George Deukmejian’s nominees to the high court.

Our experiences led us to conclude that the procedure for confirming California Supreme Court justices must be changed in order to ensure a fair and open confirmation process.

As the process works now, the commission holds its hearings on a Supreme Court nominee on the very day--in fact, only minutes before--it takes the final vote on confirmation. This is immediately followed by the swearing-in. Thus the commissioners have no opportunity before they cast their votes to evaluate seriously or to follow up on any new evidence that is brought to their attention during the hearing.

The commission has no staff or budget with which to conduct a full investigation into the legal and judicial careers of the appointees, much less the ability to study their judicial temperament, integrity, impartiality or willingness to enforce the California Constitution. For most of their information the commissioners rely on witnesses who have asked to appear before them. However, the commission does not actually seek pertinent testimony concerning the nominees’ qualifications. Instead, witnesses are most often hand-picked by the nominees themselves. While the perspective of those who have personal relationships with a nominee is valuable and necessary, this type of testimony is hardly sufficient for the determining of a nominee’s fitness to serve on California’s highest court.

Further, the commission does not make available either to the press or to the public the information that it receives concerning an appointee. Reporters are denied access to the letters from witnesses requesting time to testify. These letters, which include summaries of planned testimonies, are crucial to the ability of the press to report fully on Supreme Court nominees before the public hearing.

But possibly the commission’s most serious flaw is in its composition: the chief justice of California, who in all probability will be required to work daily with this nominee and who will invariably be seeking an ally on the court; the state attorney general, who as the most frequent litigator before the Supreme Court will be appearing before this new nominee to plead cases, and the senior presiding justice of the state Court of Appeal, who most likely has been a colleague of the nominee.

Political reality dictates against any of the three commissioners raising a serious challenge to a nominee’s appointment, much less risking being a lone dissenter when the final votes are counted. A conflict of interest clearly exists.

A system based on the federal judicial confirmation process could remedy many of the problems. Confirmation hearings before the California Senate, acting in an advise-and-consent role, would greatly improve the procedure. Hearings before the Senate would result in more systematic information-gathering, and would provide a forum for nominees to demonstrate their competence while ensuring that the public concerns about nominees are addressed.

Such reforms would no doubt take several years to implement. In the interim, several changes are crucial in order to eliminate the most serious problems of the present system. These should include:

--Separating the hearings from the confirmation vote, allowing time for the investigation of charges that are raised by witnesses.

--Giving the commission a staff and a budget so that it can perform its essential duties in investigating the backgrounds of nominees.

--Providing timely information to the press so that the public can be informed about a nominee.

--Creating a mechanism to seek out qualified witnesses and at the same time ensuring that only testimony relevant to the appointee’s fitness to serve on the court will be heard.

We have the highest regard for a just and independent judiciary. Only those who are free from the taint of bias, who have a commitment to equal justice for all citizens and who have met the highest standards of personal and professional integrity should be confirmed to our Supreme Court. The commission has an obligation to the citizens of California to make sure that only exceptional people sit on the court. But the current system of confirming justices does not ensure that these obligations are met.