Something Happened on Way to Bench : Courts: The appointment of respected lawyer Jim McIntyre to federal court was waylaid.

Jim McIntyre is a decent, honorable guy, by all accounts one of San Diego’s most respected trial attorneys. But en route to the sanctuary of a judgeship, he’s spent the past two years getting the political shaft.

It was two long years ago that McIntyre’s name was first announced for a spot on the San Diego federal court. His qualifications are impeccable. No special interest groups protested McIntyre’s nomination. No controversy dogged him. Yet the nomination went nowhere.

At first, McIntyre got caught in a power struggle over judicial selection that had nothing to do with him or his qualifications. Months later, someone in Washington noticed him--and reportedly allowed as he was a “nonentity.” Finally, this fall, when a rush of judgeships came through for women and minorities, McIntyre’s fate was to be white and male.

Bill Clinton’s election last Tuesday sealed the deal: McIntyre’s nomination is dead. New presidents nominate their own judges, not leftovers.

So close and yet so far--a long, strange trip to nowhere. For two years, McIntyre’s every move, personal and professional, was shadowed by uncertainty. Unable to commit himself to new clients, he dangled in legal limbo, concentrating on wrapping up his practice while enduring the frustration and indignities of a wait over which he had no control.

With no action on his name, there was nothing to do but wait some more. Until, with events still out of his control, the end came last week, extinguishing his hope--a vivid reminder that the dream of one man’s lifetime and the needs of a court far away from Washington can be of little consequence in the cruel and arbitrary game that is big-time politics.

“My daughter, who was then 6, this was about a year ago, when we were a year into this thing and still had a year to go, I walked in the house one night and there was my family, and my 6-year-old said, ‘It’s the maybe judge,’ ” McIntyre said in an interview last week.

“It got to the point where I was known around my house as the ‘maybe judge,’ ” he said. “It’s frustrating. It’s been very frustrating to see this thing go on and on and on. Particularly when no one can give me a good reason why it just wasn’t getting done.”

Particularly, too, because San Diego’s federal court could have really used him, said Judith N. Keep, the court’s chief judge. The seven current judges sport the nation’s highest per-judge criminal caseload, three times the national average, according to statistics released two months ago in Washington. McIntyre would have filled an eighth slot.

“Do we need another judge?” Keep said. “Absolutely. Badly.

“I feel so bad about Jim,” Keep said. “We want quality people like Jim to apply for this job. But I don’t think anybody should have to go through the personal indignity that Jim has gone through for two years. He’s been treated so shabbily. I really worry now about whether this will discourage quality people from applying.”

For a lawyer, the federal bench is as good as it gets: a federal judge has a lifetime appointment, the respect of one’s peers and, most importantly, the power to wield significant influence.

The lifetime appointment is designed to shield a federal judge from political backlash over rulings. But getting to the bench is a complex and highly political process.

A candidate is first recruited by local committee, then recommended by a U.S. senator, then screened by the U.S. Department of Justice, then nominated by the President. He or she finally becomes a judge when confirmed by the U.S. Senate.

In 1990, McIntyre took stock of his professional life and decided it was time to fulfill his dream: He wanted to be a judge.

McIntyre had been a lawyer since 1963, after graduating from Stanford Law School. He was a partner in one of San Diego’s leading law firms, now known as McInnis, Fitzgerald, Rees, Sharkey & McIntyre.

He had tried well over 100 cases before a jury, some for plaintiffs, some for defendants. In 1987, he had won a $17-million verdict, in a lawsuit that began with an auto accident and evolved into an insurance bad-faith case. At the time it was a record verdict for the San Diego courts.

McIntyre had earned a reputation as a fair, aggressive attorney. “Jim is an exceptionally fine person and an exceptionally fine lawyer,” said William McCurine, a San Diego attorney active in the local bar. “You try a case with him and you don’t worry about covering your backside. He treats you fairly. He tries a tough case, but he treats you fair.”

There had been ample recognition from his peers. McIntyre had become a member of both the American College of Trial Lawyers and the American Board of Trial Advocates, two lawyer groups open only by invitation to a select few attorneys around the nation.

He had made good money. It was time to move on. And he felt a deep desire to serve.

“I felt I’d accomplished pretty much what I’d wanted to accomplish in trial work,” McIntyre said. “I felt I wanted a new challenge. I felt, honestly, that I wanted to give something back to the community.

“If you’ve gotten what you’ve bargained for from the system for so many years, there comes a time when you want to put something back into it,” McIntyre said. “I hope that doesn’t sound too trite. It’s true.”

In the fall of 1990, Judge J. Lawrence Irving announced that he would be resigning that Dec. 31. In early December, then-Sen. Pete Wilson (R-Calif.) announced that he was recommending McIntyre to fill that slot. The recommendation was one of Wilson’s last before he became California’s governor.

In due time, McIntyre figured, he believed he would be confirmed by the Senate. “At the time I was recommended by Wilson, I was, I guess, a little naive,” McIntyre said.

Traditionally, there had been no reason to expect resistance from the Justice Department. Its role essentially had been to review the candidate’s file and pass the name on to the White House.

Under President Reagan, however, the Justice Department instituted a new policy: it wanted three names. That way, the President got to make the final choice, not the senator, said Justice Department spokesman Frank Shults.

The U.S. Constitution makes it plain that the nomination is the President’s alone, Shults said.

Senators, including Wilson and his handpicked nominee, John Seymour, resisted. Senators of the President’s party had long enjoyed the privilege of recommending the choice for home-state judges to the President. This was a perk senators did not want to cede to the Justice Department.

“With three nominees, they said, ‘We’ll do the picking for you,’ ” said H. D. Palmer, a Seymour aide. “That didn’t quite go down well with us.”

The three-nominee policy sparked no confrontations during the Reagan years. But California lawyers and judges familiar with the selection process charged that the policy evolved during the Bush Administration into a power play aimed at ensuring that judges promote a conservative philosophy from the bench.

The policy was especially problematic, sources said, when it came to candidates like McIntyre, recommended by Wilson, then endorsed by Seymour, the junior senator from California with no electoral mandate of his own.

“It was a little disconcerting,” said one source close to Seymour. “The people in Justice, who had no real way of knowing the quality of our candidates in San Diego or across California, they wanted to second-guess us.”

Shults, the Justice Department spokesman, said that was not so.

But, at McIntyre’s first interview with the department, in December, 1990, he “didn’t articulate the kind of judicial philosophy views they wanted to hear,” said a California source familiar with the interview.

McIntyre said there was no “litmus test” during the interviews, no defining question on such sensitive issues as abortion or the death penalty. But he left with an uneasy feeling.

“I don’t know what particular aspect of my views they were unhappy with,” McIntyre said. “But I think they felt that Wilson (candidates) were too moderate, not conservative enough, at least that seemed to be their perception.”

For months after the interview, McIntyre heard nothing from Washington. Then came an article the following summer in the Los Angeles Daily Journal, a legal newspaper, quoting Murray Dickman, the Justice Department official then overseeing the judicial selection process.

McIntyre, Dickman said in the article, was a “nonentity.”

Dickman later denied the “nonentity” quote. But the Daily Journal reporter who wrote the story, Charley Roberts, said in an interview this week that Dickman had been quoted accurately.

Dickman, who has since left the Justice Department, could not be located last week for comment.

More time went by. McIntyre heard nothing. Then, in the fall of 1991, after Seymour insisted, McIntyre was suddenly invited back for a second round of interviews. This time, things went fine, he said--but a whole year was gone.

During 1991, McIntyre wrapped up most of his law practice. In 1992, not wanting to solicit much new business, he actually took a leave of absence from his firm.

Meanwhile, he was undergoing thorough investigations by the Federal Bureau of Investigation and the American Bar Assn., a routine--but intrusive--step in the proceedings. Both the FBI and ABA pronounced him fit.

One day in May, President Bush called McIntyre, to announce the nomination. It was formally announced June 2, more than 18 months after the first recommendation by Wilson.

In April, 1992, the President had nominated Irma E. Gonzalez, a San Diego Superior Court judge and former federal magistrate, to another open slot on the San Diego court.

Gonzalez went before the Senate Judiciary Committee on July 1. McIntyre heard nothing from anyone in Washington.

As the summer wore on, Gonzalez, a Latino, and Lourdes Baird, the U.S. attorney in Los Angeles, another Latino, were paired through the process. In August, with the election just three months away, they were both confirmed by the full Senate.

McIntyre heard nothing.

“I feel very badly about what happened to Jim because it could have happened to me,” Gonzalez said last week.

She added later, “I think there were certain factors the senators were looking at, or weighing heavily. One of them was gender. And another, ethnic backgrounds. . . . I think that was a strong reason why I was perhaps considered ahead of others, including Jim.”

The Congress adjourned in the fall for the campaign. McIntyre heard nothing. “I still have heard nothing,” he said.

ASenate Judiciary Committee aide said McIntyre’s nomination was one of 53 left pending. In addition, the Congress went home with no nominee for 46 more seats.

That means Clinton will walk into office Jan. 20 with the opportunity to fill 99 seats.

One San Diego judge who demanded anonymity said the vacancies “really irritate me on a personal level.

“If I were a Republican, and if George Bush was in the White House and we busted our ass to get him there, even if he’s not reelected, if I’m him, I bust my ass to get my guys in there on the bench,” the judge said. “He’s got 100 guys he didn’t get in there. This is disloyalty in the penultimate. It’s outrageous. Why in the hell would a guy do that to his buddies?”

San Diego Superior Court Judge Tom Ashworth, who has had lunch every Tuesday for 29 years with McIntyre and other Stanford buddies, said McIntyre is “an easy-going, even-tempered kind of solid person. And I have seen him as close to frustrated or angry over this as I’ve seen him over anything.

“He’s been treated unfairly,” Ashworth said. “Anyone who looked at it would feel the same way.”

McIntyre stressed last week that he did not want it reported that he believed he had been treated unfairly. “It’s just that none of it came to anything,” he said.

He said he’s not sure what he does next in his life. But he did have some advice for the next nominee: “It’s much more political, all the way down the line, than I ever thought it could be. And it’s not a done deal until the day you’re sworn in.”