When considering the background of a judge, there’s a tendency to give the benefit of the doubt to the jurist – after all, if an individual has worked all the way up to being a judge, surely they’ve been investigated at multiple stages along the way, right? But, what exactly does that vetting consist of? Where would you check to see if there have been any prior issues? At the federal level, this process frequently plays out to intense media scrutiny in the Senate Judiciary Committee, particularly at the Supreme Court level. However, at the state level the process varies greatly from state-to-state. In California, the state bar’s Commission on Judicial Nominees Evaluation investigates judicial nominees before they are appointed. Then, once they confirmed and serving on the bench, the Commission on Judicial Performance is tasked with investigating and disciplining instances of misconduct. However, a recent audit of the Commission on Judicial Performance showed misconduct had occurred that was not properly investigated and documented – so if confronted with backgrounding a jurist, a prudent course of action would be to reconfirm and verify.
Of the three branches of government, the judicial branch has traditionally received the least amount of scrutiny and criticism for ethical lapses, which is reflected in polling that shows Americans have more confidence in courts than nearly all other public institutions, outside of the military and law enforcement. Moreover, when voters are queried more specifically about the opinions on state courts, confidence levels are even higher with polling showing three-quarters of voters express confidence in their state court system. Maintaining that confidence requires vigilance, transparency and accountability, in particular for a branch of government that frequently avoids intense media scrutiny.
The U.S. Supreme Court is the most recognizable judicial institution and serves as the most prominent example of judicial vetting for most members of the public. The process of the President’s team exhaustively canvassing the backgrounds of potential nominees before deciding on their final choice – followed by the media, interest groups and the opposition party conducting their own research in an attempt to discredit the nominee – has been well-documented in countless articles. The most recent Supreme Court nomination of Justice Brett Kavanaugh featured deeply contentious and highly-publicized Senate Judiciary Committee hearings, which highlighted opposition to the nomination on the basis of past allegations of sexual assault. The Supreme Court nomination process even provided the plot for two memorable episodes of the TV-show The West Wing. As with the Supreme Court, all federal judges are appointed by the President and are appointed to their positions for life.
The selection of judges to state courts, however, is less well-known and publicized. In California, judges on the Supreme Court and courts of appeal are nominated by the governor and must be confirmed by the Commission on Judicial Appointments, which consists of the Chief Justice of the Supreme Court, the attorney general, and a presiding justice of the courts of appeal. The judges that are appointed by the governor must stand for retention in the next gubernatorial election after their appointment. Supreme Court and appellate judges are appointed for 12-year terms and can run in a retention election at the end of their 12-year term. Superior court judges, on the other hand, are chosen in nonpartisan elections and serve six-year terms. In addition to having to answer to voters in elections, judges are also screened by the State Bar of California through the bar’s Commission On Judicial Nominees Evaluation, which is responsible for conducting a thorough investigation of the background and qualifications of prospective nominees, including nominees to the Supreme Court, appellate court and superior court vacancies filled by the governor. The commission’s findings, however, are advisory only. The governor is not bound by the commission's recommendations.
Once judges have been appointed, confirmed and retained via election, there is another layer of oversight through the Commission on Judicial Performance, which is an independent agency, comprised of judges, lawyers and members of the public appointed by the governor, the Legislature and the California Supreme Court. The Commission on Judicial Performance is tasked with investigating complaints against judges and, when there is evidence of judicial misconduct, providing discipline through a variety of means of corrective action, from sending private letters to the judges up to removing jurists from the bench for major misconduct.
A recent report by California State Auditor Elaine M. Howle, however, found that the Commission on Judicial Performance failed to consistently and thoroughly probe allegations of judicial misconduct, which underscores the importance of ensuring that those tasked with oversight are diligently fulfilling their mission. The Auditor found that the Commission had failed to detect chronic misbehavior and identify patterns of misconduct and recommended a number of corrective steps to remedy the problems. The audit report is a stark reminder that oversight only works when the overseers are diligent, thorough and consistent in their mission.