Bench Marks

By Max Vanzi

In California, white men have long held the influential position of judicial appointments secretary, the person who recommends judicial candidates to the governor.

The most recent man in the position, John Davies, was appointed to the job twice, first under Gov. Pete Wilson (1995-99) and then under Governor Schwarzenegger (July 2004 to January 2007). Depending in large part on the secretary's recommendation to the governor, judicial candidates can move on to be named a judge or fall by the wayside. According to Edwin Prather, president of the Asian Pacific Bar of California, Davies had a reputation for considering primarily Republicans with at least ten years of civil practice, ten years of criminal experience - and trial experience. (Davies says that under Schwarzenegger, candidates' party affiliation was much less important.) "People who hit those benchmarks," says Prather, "were predominantly white males."

Schwarzenegger has, as a result, faced intense criticism from Democrats in the Legislature for the lack of diversity in his judicial appointments. By contrast, his predecessor, Gray Davis, appointed a higher percentage of women and minority judges than any other governor in California history, according to a 2006 Sacramento Bee article. Davis's judicial appointments secretary was Burt Pines.

But in February 2007 Schwarzenegger broke new ground when he named Sharon Majors-Lewis to the position. She is the first woman and the first person of color ever to hold the title. She took the "once in a lifetime" job because she saw it as a chance to serve as a role model.

Ironically, Majors-Lewis had twice been a judicial applicant herself. She was turned down both times. "I wanted to serve as a judge more than anything," she says.

But when that didn't pan out, she continued serving in the San Diego County District Attorney's office, where she had worked since 1987, eventually rising to chief deputy district attorney. Now, the 60-year-old former prosecutor plays a pivotal role in deciding who will make it to the bench.

Born in the small East Texas town of Timpson, Majors-Lewis moved with her family from Houston to San Diego when she was seven years old. In California better opportunities were available for her father, who became the manager, and later owner, of a gas station and car-wash business.

Majors-Lewis raised two sons as a single parent while holding down a civilian job at a naval air station in San Diego. Attending night classes at San Diego's National University, she earned both a BA in business administration and a law degree. She says she was very lucky she had family, especially her mother, to watch over her children while she was attending class.

When she first began her career at the district attorney's office 22 years ago, Majors-Lewis says, she was the only African-American woman prosecutor and one of just six African Americans. She recalls walking into courtrooms to find that all of the court staff was white. The bailiffs would assume she was a defendant and tell her to go wait outside, or they'd think she was a probation officer or a defense attorney. Then, one day in the 1990s, she entered a courtroom to present a case and there was an African American on the bench, an African-American bailiff, and an African-American court reporter. She remembers thinking at that point, "I never thought I'd see the day."

When asked about racism in California, Majors-Lewis is direct. "Here's the truth," she says. "There's the South, where it was blatant. It was de jure, it was out there. In California it was de facto. Some people pretend it's not there, but it is."

Majors-Lewis came to her job amid intense controversy. Then?Assembly Speaker Fabian Núñez had threatened to quash the addition of 50 new judgeships to the state bench and instead allow only 25 - unless the governor agreed to tracking gender and ethnicity data for use in increasing minority judicial appointments. Angry Democrats in the Legislature, led by African-American, Latino, and Asian-American members, had accused Schwarzenegger of overwhelmingly favoring white males in his judicial selections. Núñez eventually agreed to authorize the judgeships on the condition that the governor each year report the ethnicity and gender statistics on those applying for and receiving judgeships. In the bill that finally passed, the governor was required to annually report demographic data only on judicial applicants. (Applicants provide information about their ethnicity on a voluntary basis.) But in 2007 and 2008, Schwarzenegger voluntarily reported the available demographic information on his appointees as well.

"Everything was just popping up [when I began my job]," says Majors-Lewis during a recent interview in her modest Sacramento office, where she holds meetings and vets judicial candidates. "In 2007 I was going somewhere or meeting with someone every week, seeing two or more individuals, groups, or bar associations in a day. I'd be in L.A. one day and San Bernardino the next, and San Diego the next, Fresno and Bakersfield, San Francisco - all over the place." In these talks, though, she says she never discussed specific judicial opportunities. Rather, she stuck to explaining the selection process, talking about her life and her career, and encouraging people to apply. In 2008 she continued her outreach efforts, speaking around the state to legal organizations including minority bar associations, judicial groups, and the State Bar convention. Nowadays, she travels less, mainly because of budget constraints. Plus, she needs to spend more time on the selection process.

Less than a year after Majors-Lewis's appointment, the issue of diversity was back on the front burner. A debate erupted over whether the names of those who sit on the governor's eight Judicial Selection Advisory Committees, which screen applicants, should be made public. Because those names have not been released, critics referred to these panels-whose members are drawn from the local legal communities and other professions and occupations - as "secret committees." They viewed the members as gatekeepers, potential barriers to diversifying the bench. However, Majors-Lewis says the panels have "an advisory role only, and a final decision about [which candidate] advances in the process is exercised exclusively by the judicial appointments secretary, acting on the governor's behalf." (See the sidebar "The Process of Selecting Judges,")

Last year the Legislature passed a bill to require the governor to reveal the names of his judicial advisors. A coauthor, Assemblymember Mike Davis (D-Los Angles), noted that 27 states mandate that the names of people on judicial nomination-recommendation panels be made public. That helps, Davis said, to ensure equity and transparency at all levels in the selection process and fairness in the judicial system.

However, last September Schwarzenegger vetoed the bill, stating that it "would impair the availability of impartial information about prospective judicial candidates, have a chilling effect upon people willing to provide candid information, and would subject individuals to political lobbying from various sources."

According to the latest numbers from the state Judicial Council, just over 70 percent of California's 1,605 trial court, appellate, and Supreme Court judges and justices are white, and a similar share are male. (See "Diversity Data,") And data released by the governor in February show that of Schwarzenegger's 387 judicial appointments since taking office, the percentages of judges in various minority groups were nearly all below the corresponding census data percentages for the state's population. Although this is certainly nothing new for a California governor, lawmakers who want the judiciary to reflect the state's demographics were not happy. "We're going to stay on the governor until his [judicial] diversity record improves," says Assemblymember Ted Lieu (D-Torrance), who is Asian American.

Schwarzenegger countered that his minority-appointment record was better than using the ethnic diversity breakdowns of membership in the California State Bar. Some believe this is a better comparison than using the state's general population because judicial applicants must be State Bar members in good standing for at least ten years. As Majors-Lewis notes, "Increasing the diversity of our benches can only happen through having a more diverse applicant pool, which starts with a more diverse State Bar membership."

And that's an uphill battle simply because the diversity of the State Bar does not reflect the state's population. "We have a diversity pipeline issue," says Bonnie Dumanis, San Diego County district attorney and a former superior court judge. "Kids of color haven't gone into law." Dumanis says Majors-Lewis has gone out of her way to increase the diversity of the bench. "Sharon looks at the diversity of life experience a person has, not just race, gender, or sexual orientation."

It is difficult to say how much of an effect Majors-Lewis has had on the diversity of the state's judiciary. The appointment process can take anywhere from a few months to more than a year, says Rachel Cameron, a deputy press secretary for the governor. "Several things can affect the time frame," says Cameron, "including which position or court someone is applying for, how many vacancies there are, a specific court's need, and how long is necessary for the vetting and interview process." Thus, Majors-Lewis did not oversee all of the 2007 appointments from start to finish.

In 2007, there were more applicants for judgeships overall (414) than in the previous year (325). But in 2008, the number dropped to 262. Cameron says she can only speculate about the reason for last year's decline: "More people could have applied in 2007 because they knew that a new person was the judicial appointments secretary," she says. "And there were 50 new judgeships that year. Fewer positions were open in 2008, and [previous applicants] didn't need to reapply because they were in the system from 2007." The Legislature had intended to add 100 more judgeships, but it has twice delayed funding for the next 50 judges, most recently until July 2009.

In addition, not every applicant supplies information about his or her ethnicity. For example, although applicants of color rose from 28.9 percent in 2006 to 30.9 percent in 2007, according to the governor's office, during the same period the share of those identified as other/unknown shot up from 13.2 percent to 22.7 percent. This makes it impossible to determine, from the data, whether the proportion of minority applicants increased or decreased. In 2008 the percentage of minority applicants fell to 25.2 percent - off by more than one-fifth from the previous year. According to Cameron: "[S]tatistically, it's a minor change, a small drop in the percentage but also a drop in total applicants." And she notes that, even so, the share of racial minorities in the applicant pool was more than twice as large as that in the State Bar's membership (11.2 percent).

Majors-Lewis has clearly pleased her boss, who in February said she "has been instrumental in attracting the best candidates to serve in our courts." And he added that he was confident diversity on the courts "will continue to grow."

To open the judicial-selection process to a broader group of individuals, one of Majors-Lewis's priorities was to revise the application form and make it available online. "People in the Legislature and others were saying the application focused too heavily on trial experience and didn't allow people with other experience to get a fair shake," she says. So the form was expanded to include open-ended questions that allow people to "sing their own praises," as she puts it.

Christine Spagnoli, president of Consumer Attorneys of California, welcomes the change. The emphasis on trial lawyers has been long-standing in the judicial-application process, says Spagnoli. She notes that under Republican Govs. George Deukmejian (1983?91) and Wilson (1991?99) the pool of judicial candidates was dominated by former prosecutors, but says it was more balanced under Democrat Davis. Civil lawyers are less likely to be in court today than they were 20 or 30 years ago, she says, "so it's a good thing" to open up the process. Adrienne Konigar-Macklin, president of the 6,000-member California Association of Black Lawyers, agrees and says that everyone benefits from the application-form revision, not just minorities.

Dumanis, who is also president of the California District Attorneys Association, says, "The fact that the application form broadens the diversity of those that could apply, or at least gives more strength to applicants who have a broader background, is always a good thing. We need to increase the diversity of the bench in California. We have to have out-of-the-box thinking in what makes a good judge."

Majors-Lewis does not tell the governor about candidates she does not recommend, including those rated as unqualified by the State Bar's Commission on Judicial Nominees Evaluation (JNE). However, in July 2007 the State Bar revealed that a white Republican-party operative whom Schwarzenegger appointed two months earlier to the San Bernardino Superior Court had been deemed not qualified by a JNE panel. Legislative critics castigated Elia Pirozzi's elevation. (Majors-Lewis refuses to discuss the matter.)

Still, the uproar in the Legislature over lack of judicial diversity has subsided somewhat, due in large part, it seems, to the efforts and the mere presence of Majors-Lewis in the selection process. And the governor's round of judicial appointments earlier this year showed more diversity. Of 14 trial-court judges Schwarzenegger named in January, the Daily Journal reported, the majority were either people of color or women; only three were white men. In March the governor announced 23 more appointments; no information on their ethnicity has yet been supplied.

Meanwhile, Majors-Lewis continues to canvass the state when she can to encourage more minority lawyers to apply for judgeships. It seems to be working. According to Jean M. Pledger, president of California Women Lawyers, interest in judicial positions is up, and she has seen more diversity among attendees at her organization's "So, You Want to Be a Judge" seminars this year.

To be sure, critics such as Assemblymember Lieu remain skeptical of the governor's pledge to appoint qualified candidates that include fair numbers of minorities. But he admits that since Majors-Lewis began shaping the selection criteria, "She has done a good job in presenting persons for review."

Assemblymember Davis remains dissatisfied with the Schwarzenegger administration's refusal to name the members of the Judicial Selection Advisory Committees, but he says Majors-Lewis is doing an excellent job. "We're not where we want to be," he says, borrowing a line from his pastor, "but thank God we're not where we used to be."

Max Vanzi is a freelance writer living in Sacramento who has been an editor and reporter for the Los Angeles Times and an editor and foreign correspondent for United Press International.

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