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BASF JUDICIARY COMMITTEE— SCREEnIng JUDICIAl CAnDIDATES

Leslie A. Gordon

BASF’s Judiciary Committee is charged with evaluating candidates seeking appointment or election to the San Francisco Superior Court, the Court of Appeal for the First Appellate District, the Supreme Court of California, the Ninth Circuit Court of Appeal, and the U.S. District Court for the Northern District of California. As set forth in the BASF bylaws, the committee rates every candidate based on character, temperament, professional aptitude, and experience but without regard to political affiliations.

The twenty-one committee members, appointed by BASF’s presidents, serve three-year staggered terms, so each BASF president appoints seven new members dur-ing his or her one-year term. Committee members are prohibited from donating to judicial campaigns and simi-larly don’t attend any BASF town hall meetings where judicial candidates participate in open forums.

In a lengthy questionnaire, the judicial applicants pro-vide the committee with references. “We solicit a few vol-

unteers from the committee to conduct interviews with people listed as references in the application,” explains Mike Moye, a partner at Hanson Bridgett and this year’s chair of the Judiciary Committee. “Those discussions can lead to other people to speak with. The information is assembled and then we conduct an in-person interview with the candidate, which lasts at least a half hour.”

Specifically, the committee examines the applicant’s in-tegrity and character; judgment and intellectual capac-ity; professional experience; industry and diligence; ju-dicial temperament; decisiveness; ability to transcend personal biases; professional ability and knowledge of the law; health; general reputation in the community; and civic activities. While the committee’s process is open and transparent as described in BASF’s bylaws, everything about individual investigations and deliberations is en-tirely confidential.

“We have discussion among committee members and a se-

In 1990, attorney Donna Hitchens challenged an incumbent judge for a seat on the San Francisco Superior Court. Like all local candidates, she was screened by the Judiciary Committee of The Bar Association of San Francisco. “Of course, I was incredibly nervous,” Hitchens recalls. “It was intimi-dating. Twenty people were there throwing questions at you.”

The committee members were “a pretty diverse group” for two decades ago, she remembers. “I really appreciated that. And by and large, people were considerate, thoughtful, and asked good questions.”

Still, Hitchens recalls that the process was “not all rosy.” One person challenged her stated reason for want-ing to be a judge, namely, “that I wanted to be more resolution-oriented rather than fighting for a living.” After that lengthy interview session and significant due diligence into her background, the BASF Judiciary Committee awarded Hitchens a “Qualified” rating, and she won the seat. She spent twenty years on the bench before retiring earlier this year.

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BASF JUDICIARY COMMITTEE— SCREEnIng JUDICIAl CAnDIDATES

ries of votes,” Moye explains. We reach consensus ratings,” assigning candidates a rating in one of six categories:

ExcEptionally WEll QualifiEd: The candidate demon-strates exceptional fitness to perform the judicial function.

WEll QualifiEd: The candidate possesses attributes listed to such a high degree as to have superior fitness to per-form the judicial function.

QualifiEd: The candidate possesses the attributes and could satisfactorily perform the judicial function.

not REcommEndEd foR appointmEnt oR ElEction at this timE: The candidate lacks one or more of the at-tributes required for a qualified rating, but the deficiency could be corrected with additional experience.

not QualifiEd: The candidate lacks one or more of the attributes to such an extent that the committee doubts the candidate’s fitness to satisfactorily perform the judicial function.

no action: The majority of the committee was unable to assign one of the ratings to the candidate.

“This is not an endorsement process,” explains Michael Tubach, managing partner of the San Francisco of- fice of O’Melveny & Myers and former chair of the committee. “Rather, it’s an evaluation process. We rate the candidates.”

While other legal trade associations—such as San Fran-cisco La Raza Lawyers Association—also evaluate judicial candidates, they are typically issue-oriented groups with a specific focus. For example, those groups usually evaluate biases that a candidate may harbor on one specific issue such as gay rights. But the BASF Judiciary Committee devises an overall rating for the judicial hopefuls.

The committee has been extraordinarily busy during the last two years, making as many as twenty evaluations each year, according to Moye. That load was largely due to sev-eral contested elections and the term-ending of Governor Arnold Schwarzenegger, who wanted to appoint as many judges as possible before leaving office. It remains to be seen how closely Governor Jerry Brown’s office will work

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with the committee on potential judicial appointees.

In selecting Judiciary Committee members, BASF presi-dents strive for a balanced and diverse cross-section of the legal community itself. For example, committee members work at big firms, small firms, at corporations, in gov-ernment, and in solo practices. Practice specialties range from civil to criminal, from transactional to litigation. A diverse group of reviewers “ensures that issues important to various people will be considered” when evaluating po-tential judges, according to Tubach.

“The committee has a diversity of practices and all de-mographics—age, race, gender, sexual orientation,” adds Doris Cheng, a partner at Walkup, Melodia, Kelly & Schoenberger and a former chair of the committee, who reviewed about seventeen judicial candidates during her tenure. “It really is an independent committee where opinions could vary by where you are in life or what your practice is like. Some members may ask themselves, ‘How would this judge be in voir dire—more or less restrictive?’

Others might ask, ‘What if this person ended up as a law and motion judge?’ Evaluating these candidates was a real privilege.”

Krystal Bowen, a partner at Bingham McCutchen, chaired the committee last year, a particularly busy year with nearly twenty evaluations. “I was interested in being more involved in BASF,” Bowen says of her decision to join the committee. “I was curious about what the com-mittee did and felt it was important to be involved and have some kind of say in our judiciary.”

Learning about the kinds of people who come through the process and the reasons they want to become judges was “very insightful,” she says. “The committee members are committed to having a bench that reflects the diver-sity of our community. And the committee works to find people who will try hard to dispense justice in a way that they see is fitting and in a way that makes people feel they are heard and are getting a fair shake [in court]. We’re a kind of check.”

When the group meets to interview a candidate, every single member participates, not just the chair and one other member, Bowen explains. “The committee is never dominated by a single person or a single line of questions. Each committee member has his or her own analysis to bring to the table. That’s different from other boards I’ve been on where it’s typical for one person to sort of control and take over the meeting. With this committee, it’s a democratic process and everyone is engaged.”

The Judicial Committee charter is “a very interesting one,” Tubach adds. “It’s nice to get behind the scenes and see who’s applying [for judgeships]. The committee sees an incredibly diverse group of people who want to be judges.”

While Tubach reiterates that the work of the committee is confidential, one of the first questions candidates are asked is, Why do you want to be a judge? “You’ve got to know you’re going to get that question and you’ve got to be prepared to just knock that out of the park,” he says. “Candidates can’t just put their hat in the ring and not think about it. But we hear wildly different answers. What comes out in the responses is the candidates’ depth of experience and their thinking about what it means to

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be a judge.” The answers to that most basic of questions range from the stock “I’m interested in public service” to personal stories such as having been caught in the middle of a custody dispute as a child, according to Tubach.

And if an applicant has an exclusively civil résumé, it means something to hear that the candidate has spent time observing criminal courtrooms in anticipation of the evaluation process, according to Tubach. “We’re not the end-all-be-all of anyone’s career. But for many, being a judge is a pinnacle of their legal career. And it’s really important to them to get it right.”

Serving on the committee was “personally fulfilling” to Tubach. “It was neat to interact with members of the bar I wouldn’t run across otherwise. I’m at a big firm and we handle big cases—I know all of the white collar and antitrust lawyers. It was really nice to get to know other lawyers” who serve on the committee.

For Cheng’s part, she says she was “excited to get in-volved. It’s a really important committee. It’s great vetting who the judges are. I’m a trial lawyer and a lot of my cases are in San Francisco so I have a vested interest.”

For all of the work put in by the committee, the absolute effect of the ratings is difficult to measure, according to Bowen. “It’s hard to say at the end of the day what the governor does with the information.”

The same goes for the voting public. “The governor is free to do what he or she feels is appropriate, and the same is true with elections,” Moye adds. “The rat-ing is advisory and the public can decide. They’re free to accept, reject, or give it whatever weight is appropriate.”

For example, in 2008, Gerardo Sandoval was deemed Not Qualified by the BASF Judiciary Committee, but was still elected by voters, ousting incumbent Judge Thomas Mellon.

Tubach notes that in some judicial elections, “things turn political,” adding that, for example, Sandoval may have benefited from Obama’s parallel election.

Although the BASF Judiciary Committee looks at the same objective criteria as the state bar’s Commission on Judicial Nominees Evaluation (JNE), the work done by BASF is more specific, providing a decidedly local per-spective on the candidate. “We do pretty thorough due diligence and part of what’s useful is that we actually know many of the people we’re calling as references for the candidates,” Tubach says. “That gives us a truly local, in-depth view of the applicant. We talk to forty or fifty people for every applicant and if something seems off, we dig deeper and talk to people not on the list.”

Bowen adds, “BASF’s committee offers input on what San Francisco’s needs are and what we think is important. We can speak to needs of the BASF community.”

A former lawyer, Leslie A. Gordon is a freelance jour-nalist living in San Francisco and can be reached at leslie.gordon@stanfordalumni.org.

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Photos by Jim Block

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2011 JUDICIARY COMMITTEE

Priya Sanger, BASF President Ex Officio Member Wells Fargo Bank Legal Department

Kelly Dermody, BASF President-Elect Voting MemberLieff Cabraser Heimann & Bernstein

Mike Moye, ChairHanson Bridgett LLP

Alexa AmezcuaMorrison & Foerster LLP

Marvin K. AndersonAT&T Legal Department

Krystal BowenBingham McCutchen LLP

David CarrilloCalifornia Attorney General’s Office

Harmeet DhillonDhillon & Smith LLP

Fey EplingDrinker Biddle & Reath LLP

Gay Crosthwait GrunfeldRosen, Bien & Galvan, LLP

Paul HendersonOffice of the Mayor

Bill Lann LeeLewis, Feinberg, Lee, Renaker & Jackson, P.C.

David A. LoweRudy, Exelrod, Zieff & Lowe, LLP

Kwixuan MaloofOffice of the San Francisco Public Defender

Manuel MartinezStein & Lubin, LLP

David MillsteinMillstein & Associates

James L. MinkBrown Eassa & McLeod LLP

Edwin PratherLaw Offices of Edwin Prather

Joshua RidlessLaw Office of Joshua Ridless

Cristina RubkeShartsis Friese LLP

Mary WrightOgletree, Deakins, Nash, Smoak & Stewart, P.C.