Merit, Politics and the Courts

The controversy over Gov. Pete Wilson’s nomination of Janice Rogers Brown to the California Supreme Court raises broad questions about the roles that politics and merit should play in nominations to the state as well as the federal bench. The disturbing questions surrounding Brown’s qualifications illustrate why a new proposal certain to inject more partisan politics into the federal judicial nomination process is extremely unwise.

The nomination of the African American conservative, announced last month, stirred controversy from the outset because of her rating as “unqualified” by a State Bar committee that evaluates nominees for judicial posts. The rating of this independent committee is advisory, not binding, on the governor. Brown, 46, has served on the state Court of Appeal in Sacramento for less than two years and previously worked as Wilson’s legal affairs secretary and as a deputy attorney general and private lawyer. Wilson dismisses the State Bar’s negative rating, citing his prior working relationship with Brown. Moreover, Brown’s friends and colleagues on the appeals court praise her intellect and hard work.

Last week, however, new concerns about Brown’s fitness for the high post appeared; The Times learned that the majority of the State Bar evaluators concluded that not only is she inexperienced as a judge but she is prone to inserting personal views into her appellate opinions. Despite the evaluators’ reservations, the Commission on Judicial Appointments, empowered by the state Constitution to approve or reject judicial appointments, is expected to quickly confirm Brown on Thursday. The commission is composed of the chief justice of the California Supreme Court, the attorney general and the presiding justice of the state Court of Appeals.

While partisan politics is certainly a factor in the selection of every state and federal judge, the new proposal on nominating federal judges would heighten political considerations and make controversies like the one about Brown more common. Sen. Bob Dole, the assumed Republican nominee for president, has said that he would like to exclude the American Bar Assn. from the judicial screening process. Since 1955, successive presidential administrations have accorded the ABA a role analogous to that of the California State Bar--to independently evaluate judicial nominees. For the most part, that process has worked to produce judges with the skill, experience and fair-mindedness necessary for the federal bench.

However, in a speech earlier this month, Dole attacked the ABA as being responsible for the nomination of judges who are, in his view, too liberal and too activist. We are unpersuaded and are even more troubled by his solution to this “problem”: appointing a panel of police, prosecutors, crime victims, legal scholars and others to review judicial appointments.

With such a panel, judicial experience and temperament could quickly take a back seat to political ideology; concerns about criminal justice could exclude those with expertise in civil litigation. Such an outcome would not be in the interest of the American people.