Wilson Judicial Selection of Friend Criticized

SAN DIEGO —  One of Gov. Wilson’s last judicial nominations--a longtime friend and advisor he is seeking to elevate from San Diego Superior Court to the appeals bench--has become one of his most controversial.

For only the second time in his nearly 700 judicial nominations, Wilson has selected someone for a high judicial post who has been rated as unqualified by an evaluation committee of the state bar.

Wilson’s nomination of Terry O’Rourke, 51, his friend and political confidant for three decades, to the 4th District Court of Appeal in San Diego has divided the San Diego judiciary into feuding camps.

Today the controversy will be considered by the three-person state Commission on Judicial Appointments, which will confirm or reject O’Rourke at a Sacramento hearing.

Detractors say O’Rourke is arrogant, combative and temperamentally unsuited for the appellate court, where judges must work cooperatively to reach judgments. Two judges who worked with him during his temporary assignment to an appeals court in Los Angeles a decade ago are said to be among his critics.

Many judges in San Diego blame him for torpedoing President Clinton’s 1994 nomination of a San Diego trial judge for a federal judgeship. They believe O’Rourke told conservative Republicans in the Senate that the judge had ruled in favor of a gay man in a 1987 child-custody case. O’Rourke has declined all comment during the nomination process.

O’Rourke’s supporters say he has distinguished himself on the trial court by displaying sharp intellect and a dedication to fairness and hard work.

Supporters say O’Rourke’s real sin in the eyes of many San Diego judges is that he is outspoken in his belief that corruption in the local judiciary is not confined to a plaintiff’s attorney and three ex-judges convicted in a money-for-favors scandal two years ago.

The scandal bared a larger pattern of a cozy and ethically questionable relationship between judges and attorneys in San Diego that the federal court judge who heard the case said had been “festering” for years.

O’Rourke testified before the Commission on Judicial Performance in favor of ousting one of the three judges for ethical violations even before he was criminally charged. And he broke with the California Judges Assn. by loudly and publicly supporting Proposition 190, a measure to toughen disciplinary standards for judges.

In support of O’Rourke’s nomination, San Diego Judge Runston Maino wrote: “Sad to say, but the legal culture of this town was (and I think, still is) one in which lawyers and judges frequently went on trips together, played golf together and socialized together in violation of our code of ethics. Terry’s support of Prop. 190 has earned him the active and lasting dislike of our bench and their friends.”

San Diego Judge Richard Murphy wrote to the governor: “When the specter of judicial and attorney misconduct arose in San Diego, many judges hid their heads in the sand. Judge O’Rourke . . . stood tall and spoke out against corruption. Such courage has unfortunately earned him the enmity of some who would sully his reputation to gain retribution.”

The state bar’s Commission on Judicial Nominees Evaluation rated O’Rourke as “not qualified” after an investigation in which dozens of attorneys and judges were interviewed and O’Rourke was given a chance to answer their criticisms.

A governor must submit the names of potential nominees to the bar commission, but he is not bound by its assessment. Two years ago, Wilson bucked the evaluation commission by nominating his former legal advisor, Janice Brown, to the state Supreme Court despite a “not qualified” rating. She was confirmed.

Today, the O’Rourke nomination, made in November but rumored for many months, will be considered by the Commission on Judicial Appointments, whose chairman is California Chief Justice Ronald George. The other two panel members are Atty. Gen. Dan Lungren and Daniel Kremer, presiding justice of the 4th District Court of Appeal.

By law, the evaluation commission’s negative report on O’Rourke cannot be made public until the day of the hearing, although word of the “not qualified” rating leaked out months ago, to the chagrin of the Wilson administration.

Although the details remain secret, the evaluation committee heard accusations that O’Rourke had treated women and minorities disparagingly, sources said. His supporters, in letters made public by the governor’s office, attempted to rebut such accusations.

“As an experienced deputy district attorney and a woman, I would not hesitate to try any case before Judge O’Rourke,” wrote San Diego prosecutor Lisa Chappell Crawford.

“I have not heard Judge O’Rourke make uncomplimentary or derogatory remarks about any minorities or women,” wrote Judge Federico Castro.

The governor has known O’Rourke since he joined Wilson’s 1966 campaign for Assembly as a 19-year-old speech writer. O’Rourke later was part of the same San Diego law firm as Wilson and John Davies, Wilson’s closest friend and now his judicial appointments secretary.

In 1982 when then-San Diego mayor Wilson ran for the U.S. Senate, O’Rourke provided legal assistance that helped him deflect charges by his opponent, Gov. Edmund G. “Jerry” Brown Jr., that he had improperly used public money to send campaign materials to voters. As governor, Wilson sought O’Rourke’s advice on appointments to the Municipal and Superior Courts in San Diego.

O’Rourke, who grew up in San Diego, graduated from Claremont Men’s College in 1969 and Harvard Law School in 1972. At Claremont, his roommate was Steven Merksamer, later chief of staff to Gov. George Deukmejian.

O’Rourke served as a legal advisor to Vice President Gerald Ford and as an analyst at two conservative think tanks before practicing civil law in San Diego and Los Angeles. Deukmejian appointed him in 1983 to the Los Angeles Superior Court and in 1987 to the San Diego court.

He would earn $122,893 a year in the appellate post.

If there is a mold for San Diego judges, O’Rourke does not fit it. He has never been a prosecutor, never served in the Navy or Marine Corps, as many of the judges have, and appears to put little or no stock in collegiality. He has opted not to participate in social or professional gatherings.

At the same time, he is more politically attuned than most other San Diego judges and frequently reminds people of his friendship with Wilson, other big-name Republicans and Chief Justice George. He has had a series of run-ins with other San Diego judges over such issues as court assignments and caseloads.

One such judge was Judith McConnell. The White House withdrew McConnell’s nomination to the federal bench after the conservative Washington Times printed a story about McConnell awarding custody of a teenage boy to his dead father’s gay lover rather than to the teenager’s mother, a Christian fundamentalist.

The story caused an immediate furor among Republicans. Many

San Diego judges believe O’Rourke planted the story to settle what one judge calls his “legendary” feud with McConnell.

“Terry O’Rourke is the worst thing that ever happened to the San Diego courts,” said one judicial official. “He elevates every dispute into a vendetta and he also sees the law as a way to pursue his very conservative political agenda.”

O’Rourke served a temporary stint on the 2nd Court of Appeal in Los Angeles years ago. Two judges who served with O’Rourke--Joan Dempsey Klein and the now retired Armand Arabian--submitted letters to the evaluation commission that figured prominently in its rating, sources say.

Neither will discuss their letters, citing the confidentiality of the process. Klein, however, when told that some San Diego judges consider O’Rourke abrasive and arrogant, noted archly that “some of those same qualities came out during his time with us.”

Klein also accused Wilson of delaying the nomination of O’Rourke until late in his term so that Lungren and George would not have to deal with a controversial issue before the November election, in which both were candidates. The governor’s office dismisses Klein’s assertion.

Fearing retribution if O’Rourke is approved for the appeals court, several San Diego judges and attorneys with scalding opinions have declined to be quoted by name or to release the letters they have sent to the commission opposing him.

At today’s hearing, three judges, an attorney, a court clerk and two public defenders have signed up to speak in support of O’Rourke. But no one has opted to go public with opposition.