At the Highest Level, the Bar Could Use Civility Lessons

Call it the Clarence Thomas syndrome. After a contentious battle for confirmation, in which gratuitous insults are freely traded and deep wounds are inflicted, a new Supreme Court justice is sworn in. But the swords that were drawn are not put back in their scabbards. Those who challenged the nomination seek vindication, hoping the new justice falls flat on his or her face and welcoming every opportunity to stick out a foot to help. Those who supported the nomination set out to discredit the opposition with attacks and thinly veiled threats of retribution. And the press gobbles it all up, because nothing makes more exciting news than prominent people being nasty to one another.

Welcome to the California Supreme Court, Justice Janice Rogers Brown. Welcome to a quiet sanctuary, allegedly far removed from the sordid vitriol of California politics. The political games that put you there were a sickening display of hypocrisy and cynicism at every level.

Start with Pete Wilson. A governor has every right to nominate whomever he pleases, and the confidence that comes from a long working relationship with a nominee should carry more weight than the recommendations of others. The governor is the only one who takes the political heat if an appointment goes sour, so he should be commended for taking an occasional risk for someone he strongly believes in. But he should defend his choice on the merits, not with a carefully orchestrated campaign to trash the state bar committee that found his nominee unqualified. By misrepresenting the committee’s findings, then questioning its competency and fairness, Wilson turned the process of judicial selection into a raw contest of political muscle.

Next, take Brown’s former colleagues on the 3rd District Court of Appeal in Sacramento, presided over by Justice Robert Puglia. Sitting colleagues rarely recommend a fellow judge’s elevation. When they do, it is not a judicial act, perhaps not even a judicious act. It’s political. And any judge who has already publicly endorsed a nominee and committed himself to her anointment should recuse himself from the commission that has the responsibility of final approval. Puglia, a member of the Commission on Judicial Appointments which confirmed Brown’s appointment last week, was highly critical of the bar panel and turned what was supposed to be an impartial hearing into a partisan slugfest.

Then there is Atty. Gen. Dan Lungren, who appears before the Supreme Court more than any other advocate or litigant. While it might appear unseemly for a frequent advocate and litigant to sit on the commission approving appointments to the court, Lungren’s seat on the commission is ordained by the state Constitution. Nonetheless, he should refrain from using that position to coerce commitments from nominees on issues he is currently litigating, such as abortion. And he should treat the state bar committee members, who, like him, are just doing the jobs they were appointed to do, with civility and respect.

Finally, take the 20 members of the State Bar Committee on Judicial Nominees Evaluation who voted Brown not qualified. I doubt that any of them bears ill will toward her because she is conservative or an African American, as Lungren and Puglia charged. The public trashing the committee members endured, with no opportunity to respond, will leave a bitter taste for years to come. But even the most vicious attacks do not justify “leaking” the unfavorable information about Brown they were sworn to keep confidential.

There is plenty of shame to go around in the way this appointment was handled. While it put Brown in an awkward position, she endured the ordeal with great dignity.

The sad thing is that all of the participants in this disgusting spectacle are lawyers and judges who know better. The civility of discourse at every level of American society is at the lowest point since our “Civil” War. Lawyers and judges should set an example that elevates public disagreement rather than dragging it though the mud. We should be able to disagree with vigor, then place our swords back in their scabbards and get back to business. In that spirit, we should congratulation Brown and wish her well. And it wouldn’t hurt to apologize to one another and ask forgiveness for our nastiness.