Gretchen Nelson. Photo: Courtesy of LACBA
In putting together a tip sheet on how to judge a judge, we had the opportunity to sit down with Gretchen Nelson, past president of the Los Angeles County Bar Association and the current chair of LACBA's Judicial Elections Evaluation Committee. Every two years the JEEC puts out a report assessing the candidates who are running for judicial office (that report is due in mid-May and for the first time will be published in both English and Spanish, according to Nelson).
Nelson talked about how important it is for voters to make an informed decision about Superior Court judges and explained how JEEC comes up with its candidate ratings.
BF: How does one judge a judge?
GN: Being a judge in my view is one of the hardest jobs in the world. First off, you have many, many people coming before you from all walks of life. And I'll take, for example, family law -- you see them at their worst. You see them when they are getting a divorce. You have all of the emotional drama that will go with that. And the lawyers sometimes find themselves in a push-pull with the client that puts them in a difficult position, and the judge has got to calmly and dispassionately filter through all that and come up with a ruling that is the right ruling.
On top of that, the judge has to understand what the law is that governs the issues, which means, in many cases they're in an area where they've never practiced. The lawyers are supposed to be helping them by providing the briefs that articulate what the law is, but you know, the lawyers want to win, and sometimes, I hate to say this, sometimes lawyers will say, "This is what this case says," and it really doesn't. So you need a judge who's someone who can understand that you have to understand what the law is and go back and read it.
That also brings you to how much they have to work. Judges downtown now, because of the volume of cases, because of the budget crisis, because of the impact that has had on the courtrooms and the number of staff that they have, as well as research attorneys, find themselves working until midnight trying to keep up with what comes up.
BF: So how does the Judicial Elections Evaluation Committee assess the candidates? What does that process look like?
GN: It's comprised of a collection of about 39 lawyers that come from a broad spectrum of practices. Two are assigned to each candidate. The two lawyers assigned to a candidate do an investigation.
The candidate is asked to turn in what's called a personal data qualification form. They are [also] required to identify 75 individuals who they think will know them either personally or professionally and confidential questionnaires are sent out to all of those 75 people.
Essentially they're being asked about the candidate -- how they would rate them on a series of issues like intelligence, diligence, how hard-working they are, temperament -- which can be a very serious issue -- and then asked sort of a generic "What's your view on this person as a potential candidate for judicial officer?"
The process that the JEEC goes through is one where there are a lot of checks and balances. We do not accept information that's anonymous. If you want to make a point about a candidate, you have to provide us with your name, and we have to be able to corroborate in some way, shape or form the information that you're disclosing. If someone calls and says, "I don't want to give you my name, but Candidate X is, you know, doing X, Y and Z," we simply will not accept it. We will not take it into consideration in evaluating that person, because there's no way for us to make sure that there's some validity to what's being said.
[If you want the nitty gritty, check out the JEEC Handbook for more detail.]
BF: What do the ratings mean?
GN: The tentative ratings are "Exceptionally Well Qualified," "Well Qualified," "Qualified," or "Not Qualified."
Not Qualified = less than 50% of the vote by the full committee
Qualified = more than 50%
Well Qualified = more than 60%
Exceptionally Well Qualified = more than 75%
The tentative ratings are issued to the candidates in this respect: If they have received a "Not Qualified" or a "Qualified," they are provided with a tentative rating and they are afforded an opportunity to appeal it. And the appeal comes to the full committee, and the candidate then makes a presentation to the full committee.
In the appeal, the rating can go up, it can stay the same, or it can go down. It is fairly rare that people contest the "Qualified" rating. The "Qualified" rating we try to make clear to them is not a bad rating. It means you're qualified. It means you can do this job.
BF: You noted the importance of temperament. With the budget crisis and, as you pointed out, the increased workload and the stress that may bring, does this change the way you look at or assess a judge? I mean, does that trait suddenly go up a couple notches?
GN: That's an interesting question. I don't know that it will. I mean, I think temperament has always been, in my view, kind of a key one. I mean the Supreme Court has in the past issued opinions that were very terrible opinions, you know, on issues of civil rights back in the 1800s and into the early 1900s. The whole issue of taking all these Japanese-American citizens and shipping them off to camps in the '40s was in my view a black mark on the Supreme Court. So courts can make mistakes, but no one will walk away from a court that has made a mistake feeling that they have been mistreated if the judge's temperament is good. If the judge indicates to you that "I'm giving you a fair shot. This is a difficult question. I have to make the call." It's like the umpire in baseball: He's got to make a call, ball or strike. And sometimes they may not make it right, or may not make the correct decision. But at the end of the day, if the individual before them feels that they have gotten a fair shake and they've had a hearing, they will walk out respecting the court. If they feel the judge was dismissive of them, didn't care about them, didn't have any interest, hadn't read the papers, made bad comments which sometimes they can make, you know, that person walks out and says, "This is not a good system." And if you start getting that reputation, that's not a good thing. So temperament is one of the most critical.
BF: On a personal note, you've tried cases yourself. You're past president of LACBA. You're on the board of trustees for the State Bar. How do these collective experiences inform you as a voter when you go to the polls, knowing what you know? What would be your routine in deciding which judge to elect?
GN: Well, first off, obviously because I'm on the committee, I take very much to heart the ratings.
I will -- if it's a sitting judge -- I will try to make sure that I go to his or her courtroom and watch that person in action if I don't know them.
If it's a non-sitting judge, I try to get a sense of whether I think that person is going to be fair.
I will also say that I -- perhaps because I have too much gray hair -- I will look at [The State Bar of California] website and find out when that person was admitted. I guess I'd probably, if there were two candidates, both were qualified, one was a little more junior than the other, I might find myself easing over into the one who I think might have had a little more experience.
BF: Do you have any other thoughts or tips for voters?
The key to this is just to get people to understand how critical this is. It's interesting to me as a lawyer, because a judicial officer to me is always somebody you really have to be very careful about who you are putting in this position, but I don't think the public at large has really understood it as much.
I mean, these people ultimately, whoever gets elected, is a person who can be at any given time making a decision that could be life or death in a criminal case, that could be in a family law case the difference in how a family structure carries on after a divorce, people who are dealing with domestic violence issues, and having to make decisions on the fly on whether or not to grant a restraining order.
When you think about it, the Supreme Court hears 80 cases a year. When you consider how many cases are out there, it's a fraction. I mean, it's less than a fraction. I couldn't even do the numbers on it. The California Supreme Court only hears about 90 cases a year, 100 cases a year. The appellate courts hear a greater percentage, but also a fraction of what goes through. So the trial judges have more impact on a day-to-day basis to members of the public than any of those other judges, in many respects. I mean, the Supreme Court obviously will set precedent that will affect criminal cases, will affect how judges can rule on things. But day to day, going in, trying to see if you are getting a fair shake, that's coming to you only from that one judge who is sitting there in black robes in the Superior Court. Very important.