Imagine this: a contentious appellate judicial confirmation hearing in a politically charged atmosphere; the proceedings devolve into heated shouting; conflicting votes are cast; confirmation is denied. Perhaps that's not so hard to imagine in some contexts. But in California, we just don't do it that way, right? Well, once upon a time...
Last month's column discussed two constitutional commissions important to appellate justices. One of those was the Commission on Judicial Appointments (COJA), which convenes hearings to publicly question and bless the Governor's appellate nominees. As described last month, these hearings are typically joyous celebrations with a foregone conclusion. The candidate is fêted by friends and family, tossed softballs, and hugged, both metaphorically and literally.
Only on rare occasions does a witness show up to testify against a nominee. This often takes the form of a disgruntled litigant who is given a few minutes to rant. Questions are not asked. The awkward moment passes, the happy hearing resumes, and the COJA panel enthusiastically gives three thumbs up. But this column focuses on the exceptional, and there is a tale to tell. As hinted at last month, once -- and only once -- a COJA panel did not vote to confirm. Let's tell that story.
18 New Seats. To set the scene, the year is 1982. Appellate resources have been stretched so thin that the California Legislature is finally willing to expand the appellate courts around the state. The initial idea was for 15 new seats, with three of those to be a new division in the First District Court of Appeal.
But some First District justices thought that instead of adding a division, the better idea would be to create a whole new district to cover the four southern counties of the First District (Santa Clara, Santa Cruz, San Benito and Monterey).
In a bizarre comedy of errors, the legislature mistakenly chaptered both bills, creating a total of 18 new seats, including both a new division for the First District and an entirely new district, the Sixth District.
COJA Hearings. Next came the COJA hearings to fill these new seats, plus an opening on the Supreme Court. In early December, four new seats were filled in Santa Ana on the new Division 3 of the Fourth District: Presiding Justice Jack Trotter (coming from Division 2) and Justices Thomas Crosby, Sheila Prell Sonenshine, and Edward Wallin. See AP, Brown fills more judicial posts, The Californian 7 (Dec. 2, 1982).
On Dec. 27, COJA confirmed Joe Grodin to the California Supreme Court (replacing Justice Frank Newman). That same day, Justice Tony Kline was confirmed to take Grodin's spot as PJ of Division 2 of the First District. As for the new seats, COJA confirmed three new justices for the Fifth District: Robert Martin, Wickson Wolpert and Charles Hamlin.
For the Second District, two whole new divisions needed to be filled, Divisions 6 and 7. COJA was very busy minting new Court of Appeal justices on Dec. 27: COJA confirmed Steve Stone as PJ of the new Division 6, and Richard Abbe and Arthur Gilbert as justices in that new division. For the new Division 7, COJA confirmed Richard Schauer as PJ and Earl Johnson and Leon Thompson as justices. COJA also confirmed Edward Butler to Division 1 of the Fourth District.
Two days later, on Dec. 29, COJA confirmed Harry Low as PJ, along with Don King and Zerne Haning as justices of the First District's new Division 5. COJA then confirmed Rick Sims to the Third District (filling the seat vacated earlier that year when Cruz Reynoso was elevated to the Supreme Court).
But what about the new seats for the Sixth District?
Sixth District hearings. To set the stage, recall that a COJA panel consists of the Chief Justice, the Attorney General, and the senior PJ from the affected district. But there was no senior PJ of the Sixth District to serve on the COJA panel because, as a brand new district, it had no existing justices whatsoever. Thus, on Dec. 29 a unique two-member COJA panel convened. That unusual scenario alone is remarkable. Yet that fact merely sets up what comes next.
The two-member COJA panel convenes, consisting of Chief Justice Rose Bird and Attorney General George Deukmejian, who went by "Duke." (The signature block on Deukmejian's official Attorney General stationery even included "(Pronounced Duke-may-gin)" under his name.) Remember, this was December 1982: There had just been a hotly contested gubernatorial election on Nov. 2, in which Republican candidate Deukmejian had narrowly defeated the Democratic candidate, L.A. Mayor Tom Bradley. Thus, the COJA-member Attorney General was also the Governor-elect -- and was poised to take office as Governor in just six days. Any unfilled seats would be his for nominations. (Deukmejian had already cast votes against Kline and Haning, but they were confirmed 2-to-1, with positive votes from CJ Bird and senior First District PJ Thomas Caldecott.)
The outgoing Governor, Democrat Jerry Brown, had nominated First District Justice Sidney Feinberg to be the Administrative PJ of the new Sixth District, along with Santa Clara Superior Court Judge Ed Panelli and Jerome "Jerry" Cohen as the Associate Justices. The State Bar Committee on Judicial Nominees Evaluation had rated all three as having "superior fitness." But Cohen had been the general counsel for the United Farm Workers. Deukmejian was a sworn enemy of the UFW and ... well... let's just say he disliked Cohen. As Panelli put it in his oral history, Duke "wasn't about to have one of those people on the Court of Appeal." "Oral History of Justice Edward A. Panelli," 17 Cal. Legal History 405, 482 (2022) (Panelli).
Deukmejian, who was just a few weeks away from being sworn in as Governor, was not going to let this golden opportunity slip from his grasp: He refused to vote in favor of any of the Sixth District nominees, and the ensuing deadlock meant that none were confirmed. This was the first time a governor's judicial nominees had failed to win confirmation in a "COJA" hearing. Bob Egelko, "Court rulings don't support bias claim," News-Pilot (Jan. 12, 1983) ("The case of Justice Sidney Feinberg may provide only a footnote for future legal historians, who will recall that he was the first appeals court candidate ever rejected in California, but it also offers a revealing look at Deukmejian less than a week before he became governor."). (Note that COJA is in quotes here because there's actually another fascinating story to be told in a future column!)
Calamity. What exactly happened? To answer that question, we have Jon Eisenberg, who as a recently minted lawyer of tender years, was employed as a First District central staffer. He attended the proceedings and witnessed the fireworks.
The first vote was on Feinberg. CJ Bird voted "yes," but Deukmejian voted "no," noting that Feinberg too often voted against the People, reversing convictions. Feinberg exploded with breathtaking fury, literally sneering at Deukmejian in what one reporter called a "tirade." Feinberg thundered: "By casting a 'no' vote you say to the public that I am not qualified, and I resent that, quite frankly." See Spencer Sherman," San Jose Court of Appeal: Brown nominees snubbed," Auburn J. 11 (Dec. 30, 1982). Feinberg emphasized his 19 years as a judge and pointed out that the COJA record contained many favorable comments from prosecutors vouching for his impartiality. See Claire Cooper, "Duke Bars 3 Brown Court Picks," Sac. Bee (Dec. 30, 1982). After Feinberg's impassioned five-minute speech, "spectators broke into sustained applause as he left the witness chair." Id.; see also Sherman, supra, (Feinberg "drew a standing ovation from the crowd," prompting another justice to say "'I would have rather had the guts to have said that than been confirmed at my own hearing.'"). Panelli later called Feinberg's retort "the most articulate argument that I had heard." Panelli, supra, at 482.
The second vote was on Panelli. Deukmejian announced he would abstain because he planned to also vote "no" on Cohen, and although Panelli was obviously qualified, "you can't have an appellate court with one person." Panelli, supra, at 478. Deukmejian assured Panelli he would be at the front of the pack for a Governor Duke appointment, saying, "I think that circumstances would develop in the future, andperhaps your nomination would be reconsidered."
The final vote was on Cohen -- as to which Deukmejian had already announced he was going to vote no. Deukmejian said he had a "host of information" that Cohen was "rude, foul-mouthed, dishonest, devious and unethical." Cooper, supra, at A20. Cohen responded by accusing Deukmejian of "character assassination" in the mold of Joe McCarthy. Id. Cohen also exclaimed to Deukmejian, "Don't feel bad ... I didn't vote for you, either." Kenneth Ofgang, "Personality Profile: George Deukmejian," (Jan. 17, 2012). The witnesses who spoke on his behalf excoriated Deukmejian.
Fallout. Then what happened? Deukmejian "denied that he had voted against judicial nominees because of philosophical differences or partisan politics." Cooper, supra, at A20. But "[c]ritics accused Deukmejian of playing politics, saving the appointments for himself" (Ofgang, supra) and the press reported that Deukmejian's unprecedented votes "drew sharp criticism from judges and lawyers."Cooper, at A1; see Sherman, supra, at 11 ("storm of criticism"); "Deukmejian blocks 3 Brown judgeships, draws fire," Fresno Bee (Dec. 30, 1982).
About six months later, Deukmejian appointed Panelli to the First District (Division 4) -- the new governor's first appellate nomination. A year after that, Deukmejian appointed Panelli to the Sixth Districtas Administrative PJ, followed a few months later by other Sixth District appointments, Justices Nat Agliano and Harry Brauer. All of those COJA hearings in 1984 were of the usual, perfunctory, sort. Then a year later, Governor Deukmejian appointed Panelli to the California Supreme Court.
For young Mr. Eisenberg, the COJA hearing of Dec. 29, 1982, was a memorable excursion into the intersection of politics and the judicial process.
Reprinted with permission from Daily Journal.
