O’Rourke OKd for Appeals Court Post
Despite a scathingly negative evaluation by a state bar committee, a longtime friend and advisor to Gov. Pete Wilson won approval Monday for promotion from the San Diego Superior Court to an appeals court.
The state Commission on Judicial Appointments voted 3 to 0 to affirm Wilson’s nomination of Terry B. O’Rourke, 51, to the 4th District Court of Appeal in San Diego. No further approval is needed.
Monday’s vote came after three hours of testimony so polarized that commission members were unable to reconcile the conflicting views of O’Rourke, with supporters praising him as a jurist of impeccable courtesy, honesty and helpfulness, and critics calling him an abusive and volatile tyrant who is insensitive to women and minorities.
Faced with such disparate views, the three commission members--California Chief Justice Ronald George, Atty Gen. Dan Lungren and Daniel Kremer, presiding justice of the 4th District--said they preferred to give the benefit of the doubt to O’Rourke and the governor’s prerogative to name judges of his liking.
But Lungren said he was troubled about accusations that O’Rourke demeans people in his court. The attorney general gently warned O’Rourke not to engage in any such conduct as an appeals judge.
An evaluation of O’Rourke by the State Bar of California’s Commission on Judicial Nominees Evaluation concluded that O’Rourke was not qualified for the post. A bar commission report called him brusque, mean-spirited, vindictive, verbally abusive, vulgar, given to fits of temper, prone to erratic and unexpected rulings and a habitual name-dropper who uses his friendship with Wilson to intimidate foes.
“The candidate’s ill temperament and abusive behavior are disproportionately visited upon women and he has been heard to use racially and gender insensitive remarks,” said an evaluation report read by commission Chairwoman Helen Zukin, a Los Angeles lawyer.
Zukin said the evaluation commission was told by more than one person that O’Rourke once said, “Mexicans are the dregs of society,” saying also that “the quality of the bench has declined since governors have started pandering to women and minorities.”
O’Rourke, who kept his head bowed while Zukin read the report, denied every accusation against him as either a fabrication or part of a conspiracy to jettison his nomination by people opposed to his high ethical standards or his role in uncovering a judicial scandal in San Diego.
“I state unequivocally that I have never expressed or harbored such bias against minorities or women,” O’Rourke said in a loud, confident voice.
Among O’Rourke’s supporters were a Latino judge, an Asian American retired jurist, an African American public defender and a female attorney--all of whom told the commission that O’Rourke is devoid of bias and, in fact, supports adding more women and minorities to the bench.
Retired appeals Justice Elwood G. Lui called O’Rourke “courteous, intelligent and collegial.”
Peter G. Keane, chief deputy public defender in San Francisco, said the anonymous criticism of O’Rourke by judges and attorneys in San Diego was a “payback” for O’Rourke’s outspoken criticism of the cozy relationship in San Diego between some attorneys and judges. Two years ago, three ex-judges and an attorney were convicted in a gifts-for-favors case.
O’Rourke cooperated with federal prosecutors in building a case against ex-Judges James Malkus, Dennis Adams and Michael Greer. He also made no secret of his belief that the criminal conduct was not confined to just the three judges.
Keane alleged that friends and allies of the fallen judges have been plotting to damage O’Rourke’s career, especially after he broke with the California Judges Assn. and supported Proposition 190 to toughen disciplinary procedures for judges.
Keane compared O’Rourke to the corruption-fighting police officer in the movie “Serpico,” saying that the jurist refused to be “drawn into a circle of silence toward illegality and bribery” in the San Diego legal community.
But retired state Supreme Court Justice Armand Arabian wrote to the evaluation committee that during a brief period on the 4th District bench a decade ago, O’Rourke showed “a quality of aggression, a hatred of women and (a predisposition for) the delivery of scurrilous accusations against members of the bench.”
O’Rourke, asked to defend himself, refused to retreat an inch. He said he was being denied due process by the evaluation process, which leans heavily on secrecy, by not being able to confront his accusers.
But Kremer said, “Frankly it’s difficult to lay it all to fabrications and plots.”
Asked his view of the San Diego legal system, O’Rourke said that when he arrived in 1987, he found a system in which many attorneys were able to practice a sloppy brand of law--such as making false statements to juries--because they were friends with local judges.
O’Rourke said there are “many judges [in San Diego] who are not aware of their obligations to recuse themselves when certain attorneys come before them.”
The negative evaluation by the state bar commission marked only the second time in his nearly 700 judicial appointments that Wilson has nominated someone found not qualified by the commission. The other nominee was Janice Brown, who was affirmed for the state high court despite that finding.
Even some of his supporters said that O’Rourke has a waspish tongue and combative style that is annoying. Keane described O’Rourke as “an independent thinker who can sometimes rub people the wrong way.” George said O’Rourke likes to play the “Socratic gadfly,” even though that can irritate people.
Reacting to the bar evaluation, George said that if O’Rourke is that bad, it is surprising there have not been complaints against him to the state Commission Judicial Performance.
O’Rourke has been a friend of Wilson for three decades, has provided legal and political advice for him and has evaluated candidates for the Municipal and Superior courts in San Diego.
O’Rourke, Wilson and Wilson’s judicial appointments secretary, John Davies, once worked in the same law firm. A Harvard law graduate, O’Rourke had a civil law practice and was appointed to the Los Angeles Superior Court bench in 1984 by Gov. George Deukmejian and transferred to San Diego in 1987.