Judicial Selection Ignores Minorities : Critics Say Governor Has Overlooked Talented Pool for San Diego Appointments

Gov. George Deukmejian is ignoring a talented pool of women and minority lawyers as he moves to fill San Diego County judgeships mainly with lawyers whose backgrounds mirror his own, say many local attorneys and judges familiar with the judiciary.

And while he built part of his political career by criticizing former Gov. Edmund G. Brown Jr. for appointing too many public defense lawyers to the bench, Deukmejian has compounded Brown’s error by choosing too many government prosecutors with little or no experience in private practice, his critics say.

As Charles Sevilla, a respected San Diego defense lawyer, put it: “Deukmejian has shown a definite preference for choosing his appointments from a pool of WASPS--White Anglo-Saxon Prosecutors.”

But Deukmejian Administration officials and local supporters of the Republican governor say he is not to blame for the dearth of women, minorities and civil lawyers on his list of judicial appointments. They say a shortage of good candidates from those groups has prevented the governor from deploying a more balanced lineup.

Moreover, even some of Deukmejian’s critics concede he has recently begun to address one of their chief concerns by choosing several respected civil lawyers with extensive private experience in areas--such as family law--which the San Diego courts have been viewed as weak.

Of the 64 San Diego judges Deukmejian has named since becoming governor in 1983, 60 have been white, and 51 have been men. He has appointed 13 women and four minorities: two Latinos, a black and an Asian.

Twenty-two of the 64 Deukmejian judges were working as prosecutors when the governor named them to the bench. Another 31 had experience as government lawyers at some point in their careers, and 28 never worked in the private sector.

“Overall, I have a lot of respect for his appointees, but this abundance of government agency lawyers is troubling and his record on minorities is just plain horrible,” attorney John Murphy, president of the American Civil Liberties Union’s San Diego affiliate, said. “The courts are the last institution protecting us from the other arms of government. And when you go in there, you want to know you’re getting a fair shake. You need a judiciary that has some sense of balance, that resembles society at large.”

Brown’s Legacy

In discussing Deukmejian’s judicial selections, attorneys invariably paint them in contrast with the legacy of Brown. While the former governor was widely criticized for the youth and inexperience of some of his choices, his appointments markedly broadened the San Diego judiciary. When Brown took office in 1975, San Diego’s 59-member trial bench was almost exclusively a closed society of white males; it had two minorities and one woman.

“Brown undertook great steps to franchise segments of our society not properly represented on the bench,” said criminal defense attorney Tom Warwick, who served during Brown’s tenure on a State Bar commission that rates judicial applicants. “I remember at a cocktail party in ‘82, Brown came up to me and said, ‘Can you give me the name of a good gay in San Diego? I want to appoint a gay to the bench.’

“That was his agenda--to broaden the experience and backgrounds on the judiciary. And while he may have reached a bit too far in some cases, the spirit and philosophy were good,” Warwick said.

It’s different with Deukmejian.

While his appointments secretary, Marvin Baxter, insists the governor’s handpicked screening committees around the state have been told to make recruiting minority applicants a “No. 1 priority,” only four nonwhites have donned the judicial robe in San Diego since Deukmejian took office 5 1/2 years ago.

Record Called Disappointing

Leaders of both local and statewide minority bar associations call that record disappointing. San Diego attorney Daniel Weber, past president of the California Association of Black Lawyers (CABL), said the scarcity of minority appointments has reduced the diversity of the local bench and does a disservice to the community.

“You need to have the people believe that justice is going to be dispensed fairly and equally among all, and if you only have one segment of society appointed--white males--then what kind of confidence can people of color have when they appear before the judiciary?” Weber said.

One of the governor’s two Latino appointees, Superior Court Judge Federico Castro, shared similar sentiments.

“People feel more comfortable if they see members of their race or gender on the bench, and they have a right to see that,” Castro said. “The courts, to a certain degree, should mirror society at large.”

Richard Castillo, president of La Raza Lawyers in San Diego, called the governor’s record of naming Latino judges “dismal, especially considering the composition of our labor force--13.8% Hispanic--and our location so close to the border.”

Baxter and members of a local committee that screens judicial applicants for Deukmejian say the governor is anxious to increase the number of minorities selected for judicial service but is hampered by a lack of sufficiently qualified applicants. Five years legal experience is required for a Municipal Court appointment, 10 years for Superior Court.

“If you get a good, solid minority candidate, he or she will get a good, solid look-see,” said Appellate Court Justice Patricia Benke, a member of Deukmejian’s San Diego screening committee. “But the governor’s office is looking for qualified judges first. The appointment of anybody for the sake of the appointment is something you just won’t see.”

Recruitment Effort

Presiding Superior Court Judge Michael Greer said his attempts to recruit minority attorneys for judicial service have been largely fruitless.

“I’ve gone out and I’ve said to them, ‘Please, come work on the bench,’ ” said Greer, a Democrat and a Brown appointee. “And they say, ‘No thanks, we like what we’re doing,’ or ‘We’re making too much money. Let us get rich first.’ ”

Another member of the panel that evaluates judicial applicants for Deukmejian in San Diego, Superior Court Judge Richard Huffman, said the committee views recruitment as “a necessary, important” role and takes it very seriously. But Huffman said he, too, has been unable to persuade minorities “who have reached a level of professional excellence” and are “handsomely compensated for it” to seek appointments.

Castillo and Weber say the governor’s office offered similar explanations several years ago when minority lawyers complained they were being denied access to the bench. But they said the shortage of minority applicants should not have been surprising: blacks and Latinos, they suspected, didn’t bother to seek appointments in the belief their backgrounds or lack of political connections would make it a futile exercise. Or, in the classic chicken-egg scenario, they were discouraged from putting their names in the hopper by the administration’s apparent disinterest.

Since then, both the statewide La Raza Lawyers and CABL have encouraged their members to apply for judgeships. Weber said CABL leaders also routinely alert Baxter to standouts deserving of an appointment.

While two Latinos--Castro and Municipal Judge Jesus Rodriguez--have been appointed in the last two years, Castillo said “we’ve had other qualified Hispanics in San Diego who have applied and--for whatever reason--have not been appointed.”

Weber said Deukmejian’s argument that he lacked a pool of qualified black lawyers from which to choose “may have been valid yesterday, but it is not an explanation that will be satisfactory tomorrow.”

Women Have Fared Better

Women attorneys have fared somewhat better during Deukmejian’s tenure, representing just over 20% of his total appointments in San Diego County. Women made up 24% of the 104,000 California attorneys licensed to practice in 1987, and the governor’s statistics show he has appointed about a fourth of the females who have applied to his office for judgeships--roughly the same as the success ratio for males.

But while many women in the legal community say they are convinced of Deukmejian’s commitment to naming female judges, most wish the numbers were higher.

“I obviously would like to see more women appointed . . . but I feel the governor’s office is receptive to women applicants and looks at the pool in a fair way,” said Christina Dyer, general counsel for the San Diego Unified School District. Dyer heads a committee of the predominantly female Lawyers Club of San Diego that evaluates judicial candidates.

“I think in recent years (Deukmejian) has become more sensitized to the diverse segments of society and we’ve consequently had more success in getting (women) appointed,” she said.

Both Dyer and leaders of feminist attorney groups statewide do not believe women have been disadvantaged in the Deukmejian appointment process because of their sex. Pauline Weaver, an Alameda County public defender who is president of the California Women Lawyers Assn., said the bottom line “is not gender but what your judicial philosophy will be.”

Weaver added, however, that women have been hindered during the Deukmejian years by two factors: the type of community service work they perform is not necessarily valued by those who screen candidates for the bench, and many women attorneys lack the political and social connections viewed as critical to winning an appointment.

“Women just haven’t had access to the type of networks with the kind of influence needed to give you that extra push,” Weaver said. “Since a lot of the appointment process is done kind of sub rosa . . . that edge can be very important. Women often don’t know the right people.”

Perhaps no aspect of the Deukmejian judiciary has sparked as much debate as its dominance by former prosecutors. As Sevilla’s “WASP” quote indicates, many pundits view experience as a government lawyer as a must for would-be judges in this era.

Statistics back up that perception: 53 of the 64 lawyers Deukmejian has named to the local trial and appellate court benches once worked as prosecutors at the federal, state, county or municipal level. Moreover, the governor has appointed two deputy district attorneys--Huffman and Judge William Kennedy--as well as two federal and two state prosecutors directly to the Superior Court, where major civil lawsuits are tried.

“What seems clearly to be the litmus test of this administration is whether a candidate has had a prosecutorial history,” said Appellate Justice J. Anthony Kline of San Francisco, former legal affairs secretary for Brown. “There’s nothing intrinsically wrong with prosecutors. It’s just that there is a need for some breadth of vision.”

The imbalance, attorneys say, does not necessarily translate into judges who are by nature anti-defense. Although some lawyers--Dist. Atty. Edwin Miller among them--said they suspect sentencing has become tougher as Deukmejian judges have joined the bench, most agree that the collective judicial posture in San Diego has not been significantly altered.

Instead, philosophy varies greatly among individual jurists.

“Some former prosecutors--like (Municipal Judge Raymond) Edwards, who was over at the U.S. Attorney’s Office, will come in there like zealots, with definite agendas, and you’ll know before you get in there that things are stacked against you,” said one criminal defense attorney who asked not to be identified.

And Huffman, who generally wins high marks as a scrupulously even-handed jurist, was knocked recently by some defense attorneys for a series of pro-prosecution rulings he made in the retrial of convicted murderer Craig Peyer.

Often, however, those who cut their teeth as deputy district attorneys “make fine judges because they’ve experienced such a broad cross section of the community,” the ACLU’s Murphy said. “They’ve made decisions about evidence and filing charges, they know how to evaluate witnesses. Their experience gives them a good balance.”

On the other hand, there are myriad stories about criminal defense attorneys who get on the bench “and suddenly go absolutely bonkers and want to lock everyone up forever,” said the lawyer who requested anonymity.

The most famous embodiment of this flip-flop is the late Samuel Leibowitz. In the early 1930s, Leibowitz became the defense bar’s hero when he represented the “Scottsboro Boys”--nine black youths accused of raping a white woman in Alabama. But after joining the bench, Leibowitz gained a reputation as one of the toughest judges in New York.

“The bottom line is, it all depends on the individual,” defense attorney Warwick said. But one thing’s for sure, he added: “The toughest judges are Brown appointees trying to get elevated by Deukmejian.”

Four judges appointed by Brown have been promoted by Deukmejian.

In any case, it is not the suggestion that Deukmejian’s appointees may share a biased, law-and-order philosophy that has raised the most fuss. The more common complaint is that the governor’s preference for prosecutors has left the bench hurting for judges expert in civil law.

A string of fairly recent appointments to the Superior Court--James Milliken, Kevin Midlam and a husband-wife team, William and Christine Pate--have considerably strengthened the judicial lineup in terms of civil experience, observers say. Also, the county’s Family Court branch--once seen as a loathsome assignment reserved for rookie judges--has won high marks recently as several appointees with family law backgrounds have joined its judicial ranks.

Still, several respected civil lawyers in town say they periodically must educate Deukmejian appointees on the law while in trial, a process that is aggravating, time-consuming and, consequently, expensive. Other critics say their cases settle before trial less frequently if a judge lacks a solid grasp of civil law.

“Until recently, there has been a heavy emphasis on prosecutors and I personally thought the pendulum had swung too far,” said E. Miles Harvey, a partner with Luce, Forward, Hamilton & Scripps. “If you’ve got someone who’s been a prosecutor for a dozen years and give him a complex real property case, you’ve got a bad situation. There’s a lot that’s happened since that person took a course on the topic in law school.”

Another attorney, who asked not to be named, used a medical analogy: “If you were having major surgery, would you want an ear, nose and throat specialist to operate?”

Marilyn Huff, a partner with one of the city’s largest law firms, Gray, Cary, Ames & Frye, said the concern is amplified given the new “fast-track” system requiring most civil lawsuits in San Diego to wrap up within a year after they are filed.

“With fast-track moving the cases along so quickly, you want to have people on the bench with some knowledge of civil law,” she said, while praising the more recent appointments.

Others gripe that the preponderance of former prosecutors is simply unhealthy because it constricts the range of experience and vision represented on the bench.

“It’s not a good idea to skew the makeup of the bench, whether you’re appointing all prosecutors, or all personal injury lawyers or whatever,” defense attorney Peter Hughes said. “You need balance. You want as broad a range of experience as you can get.”

Retired Superior Court Judge Earl Maas Jr. expressed another concern shared by several of his colleagues--that lawyers trained strictly in government offices don’t understand the problems of those in private practice.

“It’s a lack of empathy,” said Maas, a Republican appointed by former Gov. Ronald Reagan. “These guys are civil servants, they draw that check from the public bureaucracy every month and have never had to run an office or make a payroll. They haven’t been in the real world.”

Some civil attorneys say the charge that the local bench lacks civil expertise is a myth. Dan Broderick, former president of the county bar association, argues that many of the appointees who are labeled government lawyers in fact spent careers defending cities or state agencies in civil matters.

“I’ve heard this charge, and I think it’s ridiculous,” Broderick said. “I haven’t had any problem at all. I think the appointments have been excellent.”

Judge Greer, meanwhile, said that luring experienced civil lawyers to the bench has been difficult because for many attorneys, becoming a judge means taking a pay cut. Superior Court judges make $84,765 a year, those on the Municipal Court bench are paid $77,409 annually.

“It’s a terrible problem,” Greer said. “My son, 4 1/2 years out of law school, makes more money than I do. If my wife didn’t support me, I wouldn’t be able to be here.”