Wednesday, May 27, 2015
Page 7
PERSPECTIVES (Column)
Lamar W. Baker: Bereft of Credentials for the State Appellate Bench, He’s Been Appointed
By ROGER M. GRACE
Well, he’s gone and done it.
Gov. Jerry Brown on Friday nominated a 37-year-old District of Columbia attorney—with no judicial experience and scant familiarity with the practice of law in California state courts—to the Court of Appeal for this district.
I wrote about this justice-to-be in a Dec. 5 column titled, “Lamar W. Baker: Bereft of Credentials for the State Appellate Bench, He’s Apt to be Appointed.” Now he has been, and it’s near certain that at least two of the three members of the Commission on Judicial Appointments—Chief Justice Tani Cantil- Sakauye and Attorney General Kamala Harris—will vote to confirm; they are far too political to rebuff a nominee who’s in favor with the president.
Baker, a legal advisor to the president, has reported his whereabouts to the State Bar as being “The White House, 1600 Pennsylvania Avenue.”
Now that Joan Dempsey Klein has left the Court of Appeal (through her decision last year not to seek voter confirmation to a new 12-year term), Paul Arthur Turner is the seniormost presiding justice in this district and will be the third member of the commission whenever it acts on nominees to the appeals panel here. Turner, a conservative Republican, surely could not care less about pleasing the Democratic president, or, for that matter, the Democratic governor. He’s in a ticklish situation, however. A “no” vote by him on Baker (which would no doubt be tempting) would not block the confirmation, and would make for rocky relationships in his bailiwick given that Div. Five is where Brown is sending the lad.
This young man whom Brown has chosen for high judicial office—possibly the youngest ever to be awarded a seat on the Court of Appeal in this district—so much resembles the governor’s three recent appointees to the California Supreme Court that the prospect of his application being spurned was remote.
The trio Brown placed on the high court since his return to the governorship in 2011, along with their ages at the time of appointment and the jobs they then held, as well as the nature of their law practices (if any), are:
•Goodwin Liu: 41, UC Berkeley School of Law associate dean and professor. Worked as an appellate lawyer for O’Melveny & Myers in the District of Columbia, 2001-03. Was never in law practice in California; no judicial experience.
•Mariano-Florentino Cuéllar: 42, Stanford Law School professor. Was never in law practice; no judicial experience.
•Leondra Kruger: 38, a deputy assistant attorney general in the District of Columbia. Was an associate from 2004-06 in the District of Columbia law office of Wilmer Cutler Pickering Hale & Dorr. Was never in law practice in California; no judicial experience.
Liu, Cuéllar and Kruger have degrees from Yale, as does Brown. So does Baker.
Each Supreme Court appointee clerked for a federal judge…Liu for D.C. Circuit Court of Appeals Judge David Tatel, then for U.S. Supreme Court Justice Ruth Bader Ginsburg; Cuéllar for Ninth Circuit Court of Appeals Chief Judge (now Senior Judge) Mary Schroeder; and Kruger for Tatel, and then for Supreme Court John Paul Stevens (now retired).
Baker clerked for Ninth Circuit Court of Appeals Judge (now Senior Judge) Dorothy Nelson. (Brown was also a law clerk in his younger days, but for a California Supreme Court justice, the late Mathew Tobriner.)
One advantage Baker does have over Liu, Cuéllar and Kruger is that he has actually practiced law in California state courts, though briefly. From 2002-04, he was an associate in the law firm of Strumwasser & Woocher LLP, and had a role in two cases which that firm had in this district’s Court of Appeal. In 2003-04, he was counsel of record in an election-contest case before Div. Two, which he handled along with firm partner Fredric D. Woocher, and in 2004, Baker was one of five lawyers listed on the respondent’s brief in a wrongful termination/civil rights case before Div. Three.
In 2005, Baker joined the U.S. Attorney’s Office in Los Angeles, and in 2010, trotted off to the Department of Justice in the District of Columbia, where he rapidly advanced before becoming one of Obama’s lawyers in 2013.
Why didn’t Obama name Baker—a special advisor and associate counsel to him—to the federal bench? It is, after all, in the federal courts that Baker has practiced.
Maybe, just maybe, this left-of-center youth could have gained Senate confirmation to a seat on the U.S. District Court, but he apparently has aspirations to serve at a higher level. A nomination of him to a circuit court of appeals would probably have met with the same fate as Obama’s attempt to place the young and left-of-center Liu on the Ninth Circuit. Obama on Feb. 24, 2010, nominated Liu; Republicans in the GOP-dominated Senate blocked the nomination from moving forward; Liu on May 25, 2011, withdrew himself from consideration; on July 26, 2011, Brown named him to the state Supreme Court.
In appointing Cuéllar and Kruger, Brown once again accommodated the president by appointing persons smiled upon by him but who stood little chance of gaining Senate confirmation to a federal appellate court. Cuéllar was on the Obama-Biden Transition Team in 2008 and took off time from duties at Stanford to serve on various federal panels; Kruger was an administration lawyer.
It is an odd state, indeed, where greenhorns in state law can sit on the state’s highest court…or, in Baker’s case, the next-to-highest.
Baker’s lack of substantial state-court practice since he was admitted to the bar in 2002, and lack of any such practice in more than a decade, would surely render him unfit for appointment to the Superior Court. Yet, on the state’s intermediate appellate court, he will be countermanding judges with the knowledge and experience he lacks.
The most seasoned Superior Court judge with an impressive background in law practice does, sometimes, have his or her judgments reviewed by someone who is wet behind the ears: a novice research attorney or even an extern. But this is at the start of the appellate process and, it is at least assumed, that the actual call will be made by skilled jurists versed in the law. But where the back of an appellate court justice’s ears are noticeably damp, as Baker’s are, the system is skewed.
Liu, Cuéllar and Kruger all received ratings of “exceptionally well qualified” from the State Bar Commission on Judicial Nominees Evaluation. For all I know, Baker received that same rating. (It will come out at his confirmation hearing.)
Despite their sheepskins from Yale and high intellect, the lack of knowledge on the part of Liu, Cuéllar and Kruger of realities of state court practice, and nonexistence of time spent by them on the trial bench, render those evaluations, in my view, absurdities. The Supreme Court is not a place for on-the-job training; it is a place for sitting jurists who have proven themselves to be possessed of exceptional capacity.
Testament to the validity of that proposition is the harm done by Brown’s appointments to the Supreme Court and to the state during his first go-round as governor—the 34th governor—most notably his selection of Rose Bird as chief justice. She had never been a judge and had minimal law practice experience (serving in no higher a position than deputy public defender in Santa Clara County). She floundered as a top-level jurist, and by any objective standards, was a disaster as an administrator.
Brown also appointed a Boalt Hall professor, Frank C. Newman, who resigned after it became clear that he just couldn’t hack it.
Too, the Court of Appeal is no place for newcomers to California law, persons with no “stripes”…those, like Baker, with apparent potential but no track record as a judge, not even as a practitioner in the state’s courts.
In the state constitutional sense, the three appointed to the Supreme Court by the older yet no-wiser Brown, as 39th governor, are “qualified,” as is his youthful designee for a space on the Court of Appeal. Each has been a member of the State Bar for at least 10 years (though only slightly more than that). That’s all the state Constitution requires…though that’s not all, by a long shot, that the citizenry should expect of those placed on the state’s appellate courts.
Perhaps the JNE Commission, in awarding top ratings to all three Brown high court nominee, was cowed by the furor following its 2009 rating of then-state Sen. Charles Poochigian as “not qualified” for appointment to the Fifth District Court of Appeal…with then-Gov. Arnold Schwarzenegger spitefully vetoing the State Bar dues bill in retaliation and then-Chief Justice Ronald George harshly disparaging the commission at the hearing at which Poochigian was (rightly) confirmed.
Or maybe it’s just that the wrong people are on the JNE Commission at this time.
Under the rule 7.26(B)(1) of the Rules of the State Bar of California, a rating of “exceptionally well qualified” is reserved for Court of Appeal and Supreme Court “candidates possessing qualities and attributes of remarkable or extraordinary superiority that enable them to perform the appellate judicial function with distinction.”
The words “remarkable or extraordinary superiority” describe persons of the ilk of Court of Appeal Presiding Justice Norman Epstein, former California Supreme Court Justice Joyce Kennard, the late Supreme Court Justices Stanley Mosk and Otto Kaus, and the late Court of Appeal Presiding Justices Mildred L. Lillie and Robert Gardner.
Those words “remarkable or extraordinary superiority” cannot reasonably be applied to lawyers too young to have gained, through their experiences, uncommon wisdom and insights.
With respect to Supreme Court applicants, Rule 7.25 says that they “are expected to have the qualities of…distinction in the profession, and breadth and depth of experience.”
“[D]istinction in the profession” cannot be interpreted, sensibly, as referring to distinction other than in the legal profession, construing that profession to include judges (who, while in office, are “judicial members” of the State Bar).
Candidates who have run for Los Angeles Superior Court judgeships over the past several years have included those whose primary avocations were pharmacist, computer technician, and police officer. Oh, yes, and there was one who won election who was an operator of a Manhattan Beach bakery. Had any of these persons been referred to JNE in connection with possible appointment to the Supreme Court (you have just entered the “Twilight Zone”), surely they would have been judged in terms of their standing (if any) in the legal profession, not their standing among others in the trade they customarily practiced.
Professors Liu and Cuéllar were members of the teaching profession. No matter how exceptional their pedagogical skills might have been, they were to be judged by JNE in connection with “distinction” not as educators, but as members of the legal profession.
Plainly, they did not have distinction in that profession. Indeed, the teaching of law is not linked to membership in the legal profession; lack of a law degree on the part of one teaching law does not constitute practicing law without a license. As a student at University High School in West L.A,, I had a course in constitutional law, and doubt that the teacher was either a lawyer or, by teaching the course, a criminal.
Kruger did attain “distinction within the profession,” as a Washington, D.C. lawyer. But how much should that count in connection with an appointment to a California high court position? She was admitted to practice in California in 2002 and was on inactive status in the State Bar since 2009. She did not gain distinction as a California lawyer, as a person versed in California law.
In any event, the requirement of “breadth and depth of experience” in the rule connotes an expectation that the candidate’s experience have been a long and meaningful one…which cannot be ascribed to members of Brown’s high court “Youth Brigade.”
Court of Appeal nominees, such as Baker, are not required to possess “distinction in the profession, and breadth and depth of experience,” but are expected to have, as noted above, credentials of “remarkable or extraordinary superiority” which Baker clearly does not have.
There was uncertainty Friday as to whether Baker was the youngest person ever appointed to the Court of Appeal and whether former Justice Elwood Lui, 74, is the oldest. Neither the Governor’s Office nor the Judicial Council had the answer.
A spokesperson for the Judicial Council sent an e-mail Friday, received by the MetNews after-hours, saying that Justice Patricia Benke, of the Fourth District Div. One, was also 37 when appointed to Court of Appeal in 1987, and was then the youngest person appointed to that body.
But, in checking on that, I found that Benke, born April 15, 1949, was appointed by Gov. George Deukmejian on May 5, 1987, just after she had turned 38.
Someone selected by Brown to go on the Court of Appeal 34 years ago was younger than either Benke or Baker at the time of their respective appointments.
Sheila Prell Sonenshine was appointed by Brown to the Court of Appeal’s Santa Ana-based division—the Fourth District’s Div. Three—on Nov. 29, 1982, just short of five months after she turned 37.
Baker was appointed 10 months and one day after he turned 37 (on July 21).
Sonenshine (now a private judge) confirms, by e-mail:
“As far as I know I was the youngest ever appointed!
“But as my Mother always told me—one should not find too much satisfaction in being ‘the youngest-smartest’ etc. because someone can always snatch that title away.”
A spokesperson for the California Judges Association said yesterday:
“Based on our database records, we do not have anyone who has been appointed to the Court of Appeal younger than 37 or older than 74 years old.”
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