Benchmarks : Governor Keeps Tight Rein on Who Will Become a Judge

If you want to be a judge in San Diego, the odds are in your favor if you’re a white, male, Republican in your 40s, and you make a living putting crooks behind bars.

Your chances won’t be hurt if you also happen to be close to Sheriff John Duffy, Justice Patricia Benke or former Rep. Clair Burgener.

Don’t worry if you’re not personal friends with your local state legislator. That’s not a requirement anymore. But your task might be tougher if you have offended an assemblyman or senator who is an ally of Gov. George Deukmejian.

That’s the picture that develops from an examination by The Times of the 64 San Diego County judgeships filled by Deukmejian since he took office in 1983, plus interviews with jurists, lawyers, legislators and the man who handles judicial appointments for the Republican chief executive.

The power to appoint judges gives the governor great sway over the quality of justice Californians receive. Deukmejian will have an especially pronounced impact on San Diego County, where the judiciary is expanding along with the population. By the end of his second term, Deukmejian will probably have appointed nearly two-thirds of the men and women who preside over the county’s civil and criminal courts.

Something of a Mystery

But just how the governor chooses judges remains something of a mystery. It is a power he exercises behind closed doors at the end of an elaborate process that few people--even those close to it--fully understand.

Officially, the governor’s office requires aspiring judges to complete a 38-question application detailing nearly every aspect of their personal and professional lives for at least the past 10 years. They are asked to describe every personal contact with the judicial system--civil or criminal--more significant than a $50 traffic ticket. Applicants must vouch for their health and are asked to allow their physicians to be interviewed by the Administration.

But that is only the beginning.

Would-be judges have to pass muster with the State Bar of California, which surveys hundreds of their colleagues, and a San Diego screening committee whose members are hand-picked by Deukmejian. Applicants gather support from influential judges, lawyers, law enforcement officials and political players.

Experience, judicial philosophy, reputation and politics all go into the equation. But most observers seem to agree that no single factor or person can guarantee success.

“One of the strong things about this governor is his independence,” said Burgener, who once was Deukmejian’s seatmate in the state Senate and now is seen as one of the governor’s key San Diego allies. “He does it himself. He and his staff, they keep close counsel. I like that. The old boy, old girl network is not alive and well.”

Marvin Baxter, Deukmejian’s appointments secretary, said the governor relies on no “kingmakers.”

“If I did hear criticism during some of the prior administrations, it was that a person in a particular county called the shots,” Baxter said. “You’re not going to find that in this Administration. We want information from a variety of sources, and, in the final analysis, the person who is going to make the decision is the governor.”

From all accounts, Deukmejian pays less heed to the opinions of legislators on judgeships than did any of his recent predecessors.

Brown’s Style More Casual

The much more casual administrative style of former Gov. Jerry Brown, for example, allowed legislators of both parties to lobby him on behalf of a particular candidate they favored. Many report that they successfully placed attorneys on the bench by intervening personally with the governor.

Sen. Wadie Deddeh (D-Chula Vista) remembers walking in on Brown one day and all but demanding that his nominee get the job.

Deddeh recalls: “I said, ‘I’m not even going to write a letter. Here’s his name, his address, his telephone number. You check him out, but I want him appointed.’ He was appointed, and he’s still there.”

Veteran Assemblyman Mike Roos, a Los Angeles Democrat, said most approaches to Brown were more subtle than the one described by Deddeh. But Roos said it was common for legislators to bring up the name of a favorite judicial candidate during a give-and-take with Brown on an unrelated matter.

“I think Jerry Brown really used judgeships . . . as a tool to get some of his programs accomplished and his (non-judicial) appointees confirmed,” Roos said.

But Deukmejian does not work that way. The governor has a reputation as a stubborn negotiator who hates to give up anything in exchange for a lawmaker’s support. That rule extends to, or perhaps begins with, judgeships.

Baxter said the governor, a former attorney general who campaigned vigorously on law-and-order issues, considers the judicial appointments process one of his most significant tasks.

“When George Deukmejian ran for governor, the reason he gave as the most important reason he was running was to have the responsibility of making judicial appointments,” Baxter said. “That being the case, I think it would be inconsistent to have a system where the responsibility for making appointments is delegated to anybody else.”

If that responsibility is delegated to anyone, it is Baxter. A lawyer from Fresno who has long been close to Deukmejian, Baxter tightly controls the judicial appointments process. He gathers facts on the applicants, selects finalists, interviews them and recommends which ones the governor should select.

In past administrations, when legislators wanted to nominate lawyers for judgeships, they went to the governor. Now they go to Baxter.

‘Open-Door Policy’

Baxter said his office has an “open-door policy” that allows any legislator to be heard on a particular judicial opening. The Administration will usually submit a lawyer’s name to the State Bar for evaluation as a courtesy to a legislator who makes such a request, he said.

“If it’s a legislator, Republican or Democrat, whom we view as philosophically compatible with the governor and one the governor has respect for, that’s going to be factored into our decision,” Baxter said. “You evaluate the message partly on the basis of who is providing the message.”

But, although Baxter’s door may be open, lawmakers interviewed were unanimous in their opinion that the Administration looks outside the Legislature for its most trusted advice on whom to appoint to the bench.

Assemblyman Bill Bradley (R-San Marcos) said he frequently writes letters to the governor on behalf of lawyers who seek his help. But he said he also tells the attorneys bluntly that he doubts his efforts will have much effect.

“I tell them that, in my 5 1/2 years here, (the governor’s) office has called to ask me about one lawyer,” Bradley said. “I don’t think they take us that seriously as legislators. I think (Deukmejian goes) more by the background, experience and, obviously, their political philosophy. There’s a lack of communication between (the governor’s) office . . . and we legislators.”

Sen. William Craven, an Oceanside Republican who has served with three governors, said Democrat Brown often called him personally to inquire about San Diego County lawyers who were being considered for judgeships. But, Craven said, neither Deukmejian nor his staff has ever extended such a courtesy.

“From the standpoint of a relationship or rapport with the Administration as it relates to this subject area: it’s nil,” Craven said.

Assemblyman Robert Frazee, a Carlsbad Republican, said he is pleased with the access he has to the Administration through Baxter. But he, too, downplayed the significance of his recommendations.

“When someone comes to me, asking for my support, I say, ‘Have you talked to Clair Burgener or John Duffy yet?’ ” Frazee said. “If they say no, I suggest to them that this is mandatory if they are going to be successful.”

Sheriff Duffy is a member of the governor’s San Diego advisory committee. The other current members are state Appellate Justice Patricia Benke and Superior Court Judges Richard Huffman, Laura Hammes and Jack Levitt. Benke, Huffman and Hammes are all former prosecutors.

The Clout List

Burgener, though not on the screening committee, is a former congressman and state Republican Party chairman who is close to the governor. Other San Diegans who are thought to have clout include financier Tom Stickel, who was Deukmejian’s San Diego County campaign chairman, former state senator and Appellate Justice Gordon Cologne, now a lobbyist, and retired Superior Court Judge William Yale.

Peter Riddle, a municipal judge who has worked in Deukmejian’s San Diego campaigns, is another who is said to command the governor’s attention. Riddle served on Deukmejian’s San Diego screening committee for a time before he was appointed to the bench.

Baxter said the governor relies heavily, but not exclusively, on the members of his advisory committee.

“They are typically individuals he knows personally who are highly regarded and respected and who philosophically are compatible with the governor and everything he stands for,” Baxter said.

The committee is viewed with awe in San Diego legal circles because lawyers believe it has the power to make or break a candidate. The names of most candidates for judgeships go first to the screening committee before moving to the next step in the evaluation, Baxter said.

Benke, who worked under Deukmejian when he was attorney general and then was appointed up the line to the municipal, superior and appellate courts by the governor, scoffed at the notion that the committee has the power to name judges for Deukmejian.

“Some people assume that we pick the judges in this community,” she said. “I appreciate the vote of confidence in my power to appoint judges, but that’s not the way it works. . . . What that implies is that somehow there is a thumbs up or a thumbs down on an individual that we perform, and that’s it. We provide input, that is all.”

Nonetheless, some attorneys criticized the composition of the committee, noting that most of its members have prosecutorial backgrounds. These critics speculate that the narrow range of experience represented on the hand-picked panel may restrict the pool of attorneys considered and recruited for appointments.

Almost 94% of Deukmejian’s San Diego judges are white; 80% are men. And 83% are former government lawyers: 53 of Deukmejian’s 64 trial and appellate court appointees worked as prosecutors before they got the nod.

“The current regional commission consists of five individuals from strong law enforcement backgrounds,” Tom Warwick, a criminal defense attorney, said. “As a practical matter, they have veto power over anyone being appointed. If you didn’t get through their committee, no matter how well you did at (the State Bar), there would be problems for you.”

Other attorneys question the propriety of having Sheriff Duffy, the county’s top law enforcement official, decide who is and who isn’t suitable to sit on the bench.

Qualifications Questioned

“I like John Duffy, but I don’t know that he has any qualifications to pick the judges for this community,” said Ned Huntington, president of the San Diego County Bar Assn.

Defense attorney Tom Adler said it shows “extremely poor judgment by the governor to put someone in Duffy’s position on that committee.” He said a Municipal Court judge seeking elevation by Deukmejian “is in a very sticky situation every time he has to make a ruling on a sheriff’s deputy who is a witness in a criminal case--which happens all the time.

“I think (Duffy’s placement on the committee) is meant to let the bench know someone in law enforcement is looking over their shoulder,” Adler said. “It’s a very insidious thing.”

Leaders of the San Diego County Bar Assn., bothered by what they perceive as a lack of access to Deukmejian’s selection process, are looking for ways to have a greater say. But, so far, there is no agreement on how that should occur.

Warwick favors the creation of a commission of local bar members to screen candidates and provide recommendations to the governor. That system is used in Los Angeles and Orange counties, which also have handpicked panels that advise the governor, and in San Francisco County. Warwick said a proposal for a bar committee locally will be considered by the association in August.

But Ned Huntington, president of the bar association, believes a separate evaluation commission might be duplicative and “a giant chore.” Instead, he favors broadening the existing handpicked group to include a wider point of view--something several of the committee’s current members said they see no need for.

“The governor is looking for input from people that he trusts, people he feels a personal affinity toward for some reason,” Benke said. “To say that there has to be balance imposed on that is nonsense.”

All candidates approved by Deukmejian’s San Diego committee--and some who are not--are evaluated by the State Bar. The lawyers’ professional association surveys hundreds of attorneys and judges familiar with the applicants’ work and then interviews each candidate. The applicant is rated either “extremely well qualified,” “well qualified,” “qualified” or “not qualified.”

The Panel’s Work

At the same time, Deukmejian’s San Diego committee takes a second look at the candidate--a more in-depth examination of his or her background and reputation, Baxter said.

Committee members were reluctant to describe the panel’s work in detail. Benke said the panel meets regularly to review the applicants and takes its role “very seriously.” She insisted it is not necessary to be well known or have political connections to be appointed.

“If you are a good individual, your application is there and you have some way to get plunked into the system and you will be looked at,” Benke said. “I think that’s what happened to me. I say I think because I don’t know. Nobody called me from the governor’s office and said, ‘Hey, Pat, put your application in. It’s time.’ ”

But Cologne, the former justice who served on the committee for several years, said he believes attorneys should be known in the community before they are considered for judgeships. He said he left the screening committee once the governor had appointed all the applicants Cologne knew personally.

“You’ve got to be a good attorney to be a good judge,” he said. “But another thing that’s just as important is what kind of community activities you’ve been involved in--the Boy Scouts, Girl Scouts, active in your church, coached a little league team. What have you done besides make money in the practice of law?”

Letters of recommendation are the best way for an applicant to demonstrate his or her community experience, Cologne said.

“I’ve told everybody who’s spoken to me that the one thing that’s important is to get letters of recommendation from people--not just Tom, Dick and Harry off the street--but community leaders, people of substance, other judges and lawyers, because that has to have some effect,” Cologne said.

Although some candidates have been known to solicit hundreds of letters--their entire Christmas card list, Baxter speculates--the appointments secretary said 10 to 15 endorsements are usually enough.

In some cases, even fewer might do the job. Hammes, who was recruited to apply for a judgeship by Duffy’s wife, Linda, a county probation officer, said she submitted only three written recommendations with her application.

State Bar Review

“Ideally, you’d want letters coming from people who hold positions of trust and leadership who are personally known to and respected by the governor,” Baxter said.

The letters, along with the State Bar review, the advisory committee report and the original applications, all end up in a file on Baxter’s desk. He whittles the number of applicants to two or three for each opening and interviews the finalists. Then he forwards his own observations to the governor, along with the package of ratings and recommendations.

An applicant’s politics can play a role in how he or she is viewed by the governor, Baxter said. It won’t hurt if a lawyer volunteered his or her time in one of the governor’s campaigns. But Deukmejian has on occasion appointed judges who worked for his political opponents, his aide said.

“An example would be an individual who happened to be black and was a supporter of (Los Angeles Mayor) Tom Bradley in the gubernatorial campaign,” Baxter said. “If we arrive at the conclusion that that individual was motivated by ethnic pride, and in terms of basic philosophy that there is really no problem, that individual will be appointed.”

Special scrutiny is given to judges appointed by former Gov. Brown who seek elevation to a higher court. Deukmejian has promoted four Brown judges to the San Diego County Superior Court: Thomas Murphy, Zalman Scherer, Runston (Tony) Maino and William Howatt.

But local lawyers lament that some respected Brown appointees viewed as deserving of promotion are languishing on the Municipal Court bench simply because of politics.

“It’s a shame that some real stars--like (Municipal Judge E. Mac) Amos--who belong on Superior Court have been punished just because they were appointed by Jerry Brown,” said one criminal defense attorney who asked that his name not be used.

Baxter denied that Deukmejian automatically excludes Brown appointees from consideration simply because of their connection to the former governor.

“We’re going to look very carefully at their performance, their reputation, particularly among law enforcement, and try to get as clear a reading as we can as to where they’re coming from philosophically,” Baxter said.

In the end, Baxter said, he and Deukmejian are looking for no-nonsense jurists who will apply the law as it is written, not interpret the statutes to accomplish their own agenda.

“There is an interest in appointing individuals who will exercise judicial restraint, who will recognize and give credence to the separation of powers doctrine, and will appreciate and recognize that there are other branches of government that have functions to perform,” Baxter said.