Bar Faults High Court Nominee in Key Areas

State Supreme Court nominee Janice Rogers Brown, whose confirmation is expected next week, was rated unqualified by at least three-fourths of state bar evaluators, who concluded she was too inexperienced and prone to inserting conservative personal views into her appellate opinions, The Times has learned.

“She does not possess the minimum qualifications necessary for appointment to the highest court in the state,” the bar commission that reviews judicial nominees told Gov. Pete Wilson in a confidential report.

Wilson acknowledged the unqualified rating of Brown, his onetime legal affairs secretary, when he nominated her for the state high court last month. He noted that the report said Brown, a justice on the state Court of Appeal, has a reputation as intelligent, compassionate, objective and honest, and he insisted that the rating reflected the view that she had not “yet attained sufficient experience to serve as a Supreme Court justice.”

In fact, sources said, the bar committee found that Brown was unqualified for reasons beyond her limited experience--18 months--as an appellate justice. Bar evaluators received complaints that Brown was insensitive to established legal precedent, had difficulty grasping complex civil litigation, lacked compassion and intellectual tolerance for opposing views, misunderstood legal standards and was slow to produce opinions.

Court of Appeal Justice Arthur G. Scotland, who serves with Brown in Sacramento, called the criticism of her “absolutely baseless.” He said all nine of Brown’s colleagues on the court, including three Democrats, have endorsed her without reservation.

Members of the state bar commission are sworn to secrecy, and several contacted by The Times refused to discuss the rating.

Wilson spokesman Sean Walsh said the governor did not have the bar panel’s finding that Brown included her political views in opinions at the time he announced her nomination and that he was not trying to be misleading. But Walsh said Wilson was very familiar with Brown’s qualifications and did not need the bar panel’s report to judge her qualified.

He said Wilson did not receive the final report, which included the conclusion about Brown’s personal views, until about 11 days after her nomination. “A draft report has never been different from the final in our experience,” Walsh said. He called the change “very interesting” and “a bit outrageous.”

Disclosure of the unqualified rating last month had spurred speculation in the legal community that the rating reflected more than concern about inexperience. Other justices have been placed on the court without any previous judicial service, most notably former Chief Justice Rose Elizabeth Bird, who had never served as a judge before then-Gov. Edmund G. “Jerry” Brown appointed her.

A source familiar with the process said many on the evaluating committee felt that Brown, 46, lacked qualities or experiences that would have made up for her short time on the bench. The source said Brown’s legal career was spent mostly in a supervisory capacity and that she had little personal experience handling cases.

Brown served as Wilson’s legal affairs secretary for three years. She also worked in a private Sacramento law firm that handles politics and government cases. She spent about eight years as a deputy state attorney general and two years as a deputy secretary and general counsel to the California Business, Transportation and Housing Agency.

Defenders of the bar evaluators insist that Brown was not unfairly treated because she is black, female and conservative--reasons some of her supporters have suggested may have motivated the unqualified rating--and they stressed that the panel included lawyers of all races, both genders and of varied political philosophies.

Indeed, the bar committee had found Brown unqualified when Wilson first considered her for the high court two years ago. When he decided to appoint her instead to the lower-level Court of Appeal, the bar found her “not not qualified”--a rating considered barely qualified--after an initial poll had failed to muster a majority for a qualified rating, knowledgeable sources said.

Brown’s supporters have charged that the bar’s secret evaluation may need to be overhauled in light of the unfavorable rating. Her colleagues on the Court of Appeal have endorsed her, and Wilson said he knows she is qualified because of the many hours he has spent with her while she worked as his legal affairs secretary.

Walsh said the governor would have paid more attention to the bar rating if he had not had a “day to day in-the-trenches relationship” with Brown.

“The governor has infinitely more experience with this candidate than those who conducted interviews” with her as part of the bar evaluation process, Walsh said.

Brown could not be reached for comment Thursday. Bev Hing, her secretary at the Court of Appeal in Sacramento, said she would not be giving any interviews until after her confirmation.

The state bar’s evaluation is merely advisory, and Brown is expected to be approved by a three-member confirmation panel meeting in San Francisco next Thursday. Justice Ronald George, recently nominated by Wilson to lead the court, will be voting on the confirmation with Atty. Gen. Dan Lungren and Court of Appeal Justice Robert K. Puglia. Puglia sent Wilson a glowing recommendation of Brown, and Lungren, who shares Brown’s conservative philosophy, heads the office that once employed her.

Scotland said of Brown: “She is an incredibly bright, very thoughtful, contemplative person who in my experience has had a commitment to justice, an exceptional work ethic, great common sense. . . I can’t imagine how anyone could make such an allegation if they understood and had adequate knowledge of her work product.”

Scotland said Brown has written more than 130 opinions, only a handful of them published as precedent-setting, and participated in more than 400 opinions on the court. He said all of Brown’s nine colleagues on the court, including three Democrats, have endorsed Brown without reservation.

The bar’s unqualified rating, Scotland said, “reflects a fundamental misunderstanding of what it takes to be a Supreme Court justice.” He said bar commissioners ought to be “embarrassed and ashamed of themselves” for giving such an “indefensible” rating.

The state bar began evaluating judicial prospects in 1980. Brown is the first to receive an unqualified rating and still be nominated by a governor.

The bar commission that evaluates judicial candidates is called the Commission on Judicial Nominees Evaluation. Its membership is 21 lawyers and six public members appointed by the state bar’s board of governors. In evaluating a candidate whose name is submitted by a governor, the commission sends out hundreds of questionnaires to practicing lawyers and judges serving in the areas where the candidate works.

Investigating commissioners also interview the candidate. If they have received any negative comments during the investigation, they are required to notify the candidate at least 48 hours in advance to give him or her the chance to respond.

Those who fill out questionnaires are promised and given confidentiality. If someone criticizes a candidate in one of these forms, one of the commissioners is supposed to telephone that critic and seek corroboration. Rumors or remarks about reputation are supposed to be ignored unless the critic actually witnessed the offensive behavior.

But Justice Scotland questioned whether the promise of confidentiality allows critics to derail candidates out of personal animosity for their political leanings or their decisions in a case.

For his elevation to chief justice, George, who is also conservative, received the bar’s highest rating--exceptionally well qualified. Justice Ming W. Chin, Wilson’s latest appointee to the Supreme Court, also received the highest rating. Robert C. Bonner, the former U.S. attorney for Los Angeles and a federal district judge, was rated well qualified when his name was submitted along with Brown’s for consideration.

Brown once described herself as more conservative than Wilson. She has refused to say whether she shares Wilson’s opposition to affirmative action, but she is believed to be more conservative than Wilson’s two other recent appointees, Chin and Justice Kathryn Mickle Werdegar.

In a 1993 article she wrote as Wilson’s legal affairs secretary, she complained that government “has been too responsive to constituents. Government has not done too little,” she wrote. “It has done too much . . . government is not here to save us.”

Brown would be the first African American woman on the state high court and, for the first time, give the seven-member court three women.

The California Assn. of Black Lawyers has voted unanimously to endorse Brown. Robert W. Johnson, president of the group, said he has spent time with her recently and got the impression she would be sensitive to civil rights concerns.

“We are supporting her 100%,” he said, “even though we have some problems with the governor,” particularly his opposition to affirmative action. Johnson noted that the group would not endorse a candidate simply because he or she is black.