Increasing Diversity on the Bench

GOVERNMENT • Dec. 14, 2007
Increasing Diversity on the Bench
Judicial Appointments Secretary Improves the Odds for Minorities
By Laura Ernde
Daily Journal Staff Writer

SACRAMENTO - Shortly after becoming the governor's judicial appointments secretary, Sharon Majors-Lewis witnessed something that seemed to confirm critics' worst fears about the judicial selection process.
One of the governor's secret local nominating committees - she won't say which one - rejected a candidate based on the say-so of just one committee member.
"I said, no. One person cannot cut that person off from a judgeship. Timeout," Majors-Lewis said, making an emphatic "T" with her hands.
Under long-standing practice in California, the regional committees are appointed by the governor to advise him on judicial appointments. In that capacity, the committees play a critically influential role in the appointment process by weeding out candidates and helping determine which names are forwarded for more-formal review.
Well aware of the secret committees' "star chamber" reputation, Majors-Lewis immediately fired off a memo to members statewide, instructing them that one person no longer could veto a candidate.
Through that and other changes in the 10 months she's been on the job, Majors-Lewis seems to have improved the odds for qualified women and minority candidates seeking the bench.
But critics remain disappointed by what they see as her willingness to maintain a veil of secrecy around the selection process.
"These committees, honestly, have more power than [the Commission on Judicial Nominees Evaluation]," said Fredericka McGee, general counsel to Assembly Speaker Fabian Nuñéz. "They're the front door and the back door."
Although the commission and local bar associations make public the names of their evaluators, the local committees can make or break careers under the cloak of anonymity, according to McGee, who has led a charge to unmask the committee members in an effort to shed more light on the selection process.
Nuñéz and several news organizations, including the Daily Journal, have asked formally that the names of committee members be made public. In response, Schwarzenegger intends to decide in January whether to release the identities, said his spokeswoman Rachel Cameron.
Before making a recommendation to the governor, Majors-Lewis is asking committee members how they feel about going public.
She has serious reservations about revealing the names of the panel members, all of whom volunteer their time.
Majors-Lewis said she worries that going public will open them up to lobbying, on one hand, or to scorn from friends who have been rejected, on the other.
"I don't want kingmakers," she said.
Publicizing the names could make the committees less effective, Majors-Lewis said, because candidates always are on their best behavior around committee members.
"We won't see their true colors," she said.
McGee countered that committee members are being lobbied - but only by those lucky enough to belong to the "good old boys" network.
Majors-Lewis defended the integrity of the dozens of volunteers who serve on the eight geographically dispersed committees.
"I'm very proud of the people who are on these committees," she said. "In the instances where I'm not, some people have been removed."
Without the committee members, Majors-Lewis said she would have no way to sift through the hundreds of applications she receives.
"For me, they're invaluable," she said.
Majors-Lewis said she has worked to increase the diversity of the committees.
When she arrived, she found one committee that comprised all white men. After she teased the committee's members about it, they added a woman.
She said the committees are politically diverse, including a cross section of Democrats and Republicans.
Under Majors-Lewis' reforms, at least two negative votes are needed to knock out a candidate. That's short of a majority, because the panels range in size from eight to 14 members, according to Majors-Lewis.
Committees also must tell her the reasons each applicant gets a thumbs up or thumbs down.
"I wanted some way to determine they're being fair and not being arbitrary and capricious," she said.
Majors-Lewis can, and has, overruled the committees and sent a candidate's name on to the Commission on Judicial Nominees Evaluation without their recommendation.
Majors-Lewis changed the application form to give attorneys without a lot of trial experience or who haven't served as prosecutors a better shot at the bench.
She's traveled up and down the state speaking to bar associations and other groups to encourage all kinds of people to seek judgeships.
"I tell people, 'If you want it and it's your passion, you should apply,'" Majors-Lewis said.
Majors-Lewis, who is black, came to the job as the first minority and the first woman to serve as judicial appointments secretary. She was given the task of increasing diversity in whichever way she saw fit.
The numbers show that Majors-Lewis has made some inroads toward diversifying a bench that remains 70 percent white.
Of the 81 judges Schwarzenegger has appointed under her watch, fully a third have been minorities, according to State Bar figures.
That beats Schwarzenegger's overall record. During the four years of his administration, the governor has appointed 291 judges. About 22 percent have been minorities, the bar figures show.
"We've been fairly pleased with her appointments," said Chris Arriola, judicial chair and past president of California La Raza Lawyers Association, a group of Latino attorneys. "This is a good trend. More importantly, she's done a tremendous job doing outreach to minority communities."
Still, Arriola said he believes the governor should reveal the names of the local committee members.
"They are a quasi-public agency and should be subject to scrutiny," he said. "If you want a totally fair process, everyone should have equal access to these people and know who they are and not have to use an old-boys network to determine who these people are."
But not everyone is convinced that the names should go public.
Tom Layton, a State Bar investigator who has been helping to recruit minority candidates in the Inland Empire, said the committees would lose some of their independence if they lose their anonymity. Layton agreed with Majors-Lewis that the committee members suddenly would find themselves subjected to all kinds of pressure.
"Everybody would be lobbying their friends," he said. "It would almost be like the Legislature. You'd have a whole bunch of judge lobbyists."
Layton praised the work of Majors-Lewis, saying the number of minority candidates who have called to ask him about becoming a judge has increased threefold since she came on board.
"I think it's remarkable, actually," he said. "People see there's a chance. People who weren't thinking of it now are applying."
For instance, half of the eight people under consideration by the governor to replace 1st District Court of Appeal Justice Joanne C. Parrilli are minorities, according to sources. Parrilli retired in July after 12 years on the San Francisco court.
U.S. District Judge Martin Jenkins, who is black, is considered by some court watchers to be the front-runner.
But in the 2nd District Court of Appeal, a source close to the appointments process told the Daily Journal in October that no minorities were among the finalists being considered for three openings on that Los Angeles-based court.
Layton refuted that report, but he said he was not at liberty to divulge more information about the confidential judge-selection process.
Timothy A. Simon, Schwarzenegger's former appointments secretary, said Majors-Lewis has done an "exceptional job," and he credited her with improving the efficiency of the review process through better technology.
"She has, for lack of a better word, institutionalized diversity," said Simon, who is a commissioner on the California Public Utilities Commission.

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