When Superior Court judge Terry Byron O'Rourke was allowed a glimpse at the accusations against him, he admits he gulped.
"The candidate is viewed as having one of the worst temperaments among San Diego judges," the State Bar paper said. "[He] has a reputation for being mean-spirited and vindictive...has not provided fair and impartial justice...outbursts of anger...slamming books and other materials on the bench...insults attorneys...loud, confrontational behavior."
There was worse. The Commission on Judicial Nominees Evaluation of the State Bar of California, usually called the Jenny Commission (after the initials JNE), cited criticisms of sexism and racism. "The candidate's ill temperament and abusive behavior are disproportionately visited upon women.... He has been heard to make racially and gender-sensitive remarks such as 'The quality of the bench has declined since governors have started pandering to women and minorities'; 'Mexicans are the dregs of society'; and 'We have to deal with all of this minority law practice.' ... Candidate's behavior problems have become worse in the last decade."
O'Rourke, 51, a Superior Court judge for the past 15 years (11 in San Diego), was appearing before the commission earlier this month after his longtime friend Governor Pete Wilson nominated him to the 4th District Court of Appeal.
Being buddies with the governor didn't help. At the meeting, even fellow judges weighed in against him. Retired State Supreme Court Justice Armand Arabian wrote in a letter to the evaluation committee that O'Rourke showed "a quality of aggression, a hatred of women and [a predisposition for] the delivery of scurrilous accusations against members of the bench."
"Sexism, racism? Impossible!" roars O'Rourke's friend Leslie Abramson, the lawyer celebrated for her defense of Eric Menendez. "I never saw a shred of it. A client that I had in front of him was a Mexican-American, and he treated him with utmost respect, in fact he married him [officiated at his wedding]. And as far as gender-bias: I don't believe it for a second. If ever a type of woman is going to draw fire it's someone like me who's extremely aggressive, and he treated me splendidly."
When Wilson nominated O'Rourke, the commission sent out 1563 questionnaires seeking the California legal fraternity's opinion on him. They promised anonymity to all. They received 263 "knowing responses." The accusations all came anonymously by this means, following a system meant to encourage frank assessment of judicial appointees. On the basis of those replies, said the Jenny Commission, "at least 75 percent of the commissioners voting find the candidate Not Qualified."
"I'm not privy to how many people made the comments," says O'Rourke, "or whether they were made at all. There's a total lack of due process. So I don't know how many they are, or who they are. It's shadow-boxing!"
Not all accusations are politically motivated, he believes. "As a judge you make a certain number of people unhappy with you because of the outcomes of cases, irrespective of how well behaved you are, how good a judge you are. There isn't a trial judge anywhere who doesn't have some disgruntled parties or attorneys who have been in front of him. I would just say there's an enormous disparity between the claims that are made in the Jenny report as opposed to [my] record."
With allies like Abramson, and, more importantly, Governor Pete Wilson, O'Rourke is perhaps less vulnerable to the judgment of "Jenny" than many judgeship hopefuls. Still, the commission's conclusions were totally untrue, he says, and devastating to him. He brought in seven witnesses, including a Latino judge, a retired Asian-American jurist, a female attorney, and an African-American public defender. All insisted O'Rourke supports women, minorities, is polite to a fault, and is devoid of bias.
Could such malice prevail? And why so much venom directed at one of the county's most respected judges?
O'Rourke's friends say it's because of one thing: he is the judge who was largely responsible for exposing San Diego's Superior Court judges James Malkus, G. Dennis Adams, and Michael Greer. The three were convicted two years ago of accepting gifts from prominent downtown lawyer Patrick Frega in return for giving him favorable treatment in their courtrooms. Their convictions rocked San Diego's legal community. "Over a period of many years, in cases involving dozens of litigants and millions of dollars," prosecutors said recently, "Frega, Adams, and Malkus exploited and dishonored the system of justice that it was their obligation to defend." (Adams and Malkus are free on bail pending appeals on charges of conspiracy and mail fraud. Greer pled guilty to bribery and turned state's evidence.)
Judge O'Rourke won't specify his role in bringing the judges down. He says all interactions between federal investigators and sources of information were anonymous.
Yet many in the legal profession consider that O'Rourke, in blowing the whistle on his fellow judges, had betrayed his fraternity.
"They said Terry was 'divisive among judges,'" says Peter G. Keane, chief deputy public defender in San Francisco, who spoke up for O'Rourke at the hearing. "Well, yeah, he was. He was divisive among San Diego judges in the same way that Serpico was divisive among New York City police officers: he was honest! And he refused to stay silent about corruption and bribery and unethical and illegal conduct in the San Diego justice community. And by that token he was divisive. Well, more power to him. God bless him!"
O'Rourke and his speakers denied every accusation against him. His friend for three decades, Pete Wilson, stood by his nominee. And the three Republican-appointed judges on the commission -- California Chief Justice Ronald George, Attorney General Dan Lungren, and Daniel Kremer, presiding justice of San Diego's 4th District -- appointed him to the appeals court anyway. But to O'Rourke, the shocking accusations are an indication that many San Diego judges and lawyers haven't forgiven him.
"I've always freely admitted that I'm very controversial," says O'Rourke, sitting among computers and boxes in his new fifth-floor office in Symphony Towers. "[I'm] viewed as a maverick, because of the activities I've undertaken."