Conservative media outlets both nationally and in California are campaigning against Gov. Jerry Brown's nominees for the state judiciary, attacking their political leanings and complaining about their “race, gender, or sexual orientation,” in a baseless effort to suggest the nominees are unqualified and selected “strictly for reasons of affirmative action.”
The recent round of attacks were given a national platform in a November 26 Wall Street Journal editorial, which, while questioning the lack of judicial experience of some of Brown's nominees, largely focused on whether the ideological leanings of Brown's nominees are similar to his own. The California Supreme Court was previously dominated by judges appointed under Republican governors, but Brown's picks, Journal columnist Allysia Finley complained, “have tilted the court left.”
California media were more specific, and honed in on whether the nominees were from “the right racial groups,” as San Francisco Chronicle editorial writer Marshall Kilduff put it. Ignoring the fact that multiple high court jurists had not previously served as judges before their appointments (such as current Supreme Court Justice Elena Kagan and former Chief Justice and California governor Earl Warren), Kilduff also criticized Brown's nominees for a lack of experience with “sleepy jurors.” But as The Los Angeles Times reported, Brown has no flat rule against trial or appellate experience with respect to his nominees -- similar to his choice for the San-Francisco-based appeals court, “Brown's picks for the Los Angeles-based appeals court were all sitting judges, suggesting he considers bench experience valuable.”
The criticism of Brown's attempts to diversify the bench got uglier, however, after the Journal weighed in. The Metropolitan News-Enterprise, a Los Angeles legal newspaper, recently ran a column from Roger M. Grace, flatly concluding Brown's nominees were “bereft of credentials,” and were “apt to be named ... strictly for reasons of affirmative action”:
Surely, race should not be, ever, a factor in choosing judges.
It simply doesn't relate to a person's capacity to serve in a judicial role.
Yet, the reality is that to Jerry Brown, being a non-white is a huge plus for a seeker of a judgeship.
And so we return to young [Lamar Baker, former US Deputy Assistant Attorney General]. He is almost certain to be appointed to the state's intermediate appellate court--and would probably be under consideration for the Supreme Court were there any more vacancies. He, like [former U.S. deputy attorney general and current California Supreme Court nominee Leondra] Kruger, is an African American.
He has all the qualities that Brown is looking for in a justice.
And what he lacks -- the know-how and wisdom that can only be derived from experience -- is of no concern to the man once known as “Governor Moonbeam.”
He's not called that anymore. But the lunar influences on him are as strong as ever they were.
Also apt to be named to the appeals court, strictly for reasons of affirmative action, is Los Angeles Superior Court Judge Luis Lavin. He's openly gay. That, and his law degree from Harvard, are probably enough to cinch an appointment -- unless the governor views him as being too old (he's 55) or holds against him his judicial experience.
From what I've seen, Lavin is a result-oriented jurist, lacking in intellectual honesty. But that sort of thing would, of course, be of no interest to Brown.
The attack on Lavin is particularly notable, as it suggests the campaign against Brown's nominees is now no longer about their party affiliation or their time as a trial judge, but rather reduced to “from what I've seen” assumptions about their skill based on their “race, gender, or sexual orientation.” Lavin, for example, appears to meet the Journal and Kilduff's experiential requirements, despite the fact that “he's openly gay.” From his faculty bio at Whittier Law School:
Prior to Lavin's appointment to the bench, he served as General Counsel and Director of Enforcement for the Los Angeles City Ethics Commission ('99-'01), and as a Trial Attorney with the U.S. Department of Justice, Civil Rights Division ('95-'99). At DOJ, he enforced federal fair employment laws against public employers in federal district courts throughout the country. Lavin's work at DOJ took him from Arkansas to Utah. In recognition of his accomplishments, he received a special commendation award for outstanding service to the Civil Rights Division from Attorney General Janet Reno.
In his current position as Superior Court Judge, Lavin presides over traditional and administrative civil mandamus proceedings such as requests for judicial review of decisions by adjudicatory agencies. From 2008 through 2012, he presided over a fast-track, general jurisdiction civil court with an inventory of more than 400 cases. Lavin also spent four years in a criminal assignment, including presiding over some of the most serious murder and gang-related cases prosecuted in Los Angeles.
These attacks on California judicial nominees are part of a new right-wing focus on state judicial nominations and elections, which has not yet fully manifested in California.
California employs a “hybrid system” that allows the governor to appoint judges, who later run in retention elections where voters re-appoint them or vote them out. Although the California legislature did tighten some restrictions for judicial elections in the wake of the Citizens United decision in 2010, other states have seen a significant rise in outside spending to influence the outcome of judicial races. According to a recent report from Mother Jones, spending in judicial elections has increased “as partisan groups realize that donating to judges can get them more influence, for less money, than bankrolling legislative campaigns.”
Hopefully this nascent campaign against Brown's highly-qualified nominees isn't a sign of worse to come.