Hasty Judicial ‘Coronations’

At minimum, Gov. Pete Wilson’s nomination of a controversial San Diego trial judge to the state appeals court should provoke serious debate over whether Californians are well served by the existing process for confirming appellate justices.

On Nov. 19, Wilson tapped his long-time friend, Terry O’Rourke, for a seat on the 4th District Court of Appeals. O’Rourke, on the Superior Court bench since 1984, has described himself as a controversial figure and maverick judge. Others describe him as rigidly conservative and abrasive and question his suitability for the appellate bench.

Of course, neither O’Rourke’s politics nor his 30-year friendship with Wilson disqualify him from elevation. Indeed, on Tuesday Wilson nominated his chief legal advisor, Daniel Kolkey, to a spot on the appeals court in Sacramento. But the outgoing governor’s eleventh-hour appointment of O’Rourke to a seat that has been vacant for two years and charges from some fellow judges that O’Rourke may be temperamentally unsuited for the job bear examination. Unfortunately, California’s confirmation process doesn’t allow for that sort of review and deliberation.

Gubernatorial appointees to the Supreme Court and the Court of Appeals are reviewed by the Commission on Judicial Appointments, which has three members: the chief justice, the attorney general and the senior presiding justice of the Court of Appeal in the district the new justice would join. In O’Rourke’s case, Chief Justice Ronald M. George, Atty. Gen. Dan Lungren and 4th District Presiding Justice Daniel J. Kremer will decide the appointment.

Typically, the commission meets in Southern California when the nominee would sit on a court here, making it easier for supporters and opponents to testify. In O’Rourke’s case, the panel has scheduled a Sacramento meeting next Monday. Generally, the commission provides 30 days for public comment before its hearing. The panel has allowed just over half that time on O’Rourke.

Often the panel holds its hearing, votes and enrobes the new justice in less than an hour, prompting one judge to describe the process as “more like a coronation than a confirmation.” The last time the panel rejected a nominee was during the administration of Edmund G. “Jerry” Brown Jr., court officials believe.

In the O’Rourke case--in anyone’s case--such haste could be a mistake. Once confirmed, appellate justices can serve for 12-year terms, and they almost always win their periodic retention elections. The confirmation process should be changed to allow serious discussion.

In addition to those who will testify in support of O’Rourke before the panel, letters of opposition have been submitted. Neither these nor the report from the state’s Commission on Judicial Nominees Evaluation, which rates the qualifications of prospective jurists, will be made public until the hearing, just before the vote.

California’s judges deserve their national reputation for independence, fairness and intelligence, qualities due in part to a relative absence of the partisan politics that saturate judicial appointments in many other states. California does not need a whole new approach to judicial confirmation, but reforms that encourage more deliberation and time for reflection seem to be in order.