Commission confirms 3 new justices to California Courts of Appeal

The Commission on Judicial Appointments on Monday unanimously approved three new justices to California's Courts of Appeal -- elevating Supreme Court chambers attorney Matthew Scherb directly to the 2nd District, advancing San Bernardino County Superior Court Judge Corey G. Lee to the 4th District, and appointing veteran Fresno County jurist Arlan L. Harrell to the 5th District.

The appointment of Scherb, 47, to replace retiring Justice Elizabeth Grimes on the 2nd District, Division 8, was unusual because he has never served as a judge. Witnesses at the hearing praised him for his analytical rigor, writing skills, and understanding of technologies.

A Yale computer science graduate and Ellsworth Memorial Prize recipient for his work on cryptographic systems, Scherb earned his law degree from Northwestern University, where he was managing editor of the law review. He clerked for U.S. District Judge Royce C. Lamberth in Washington, D.C., spent six years at Winston & Strawn LLP, and served 51/2 years as lead attorney to Justice Kathleen Banke before joining the Los Angeles city attorney's appellate unit in 2017. He most recently worked as a research attorney to retired Justice Martin Jenkins at the California Supreme Court.

Andrew P. Bridges, a former colleague at Winston & Strawn, called him "one of the finest lawyers and persons I've known" and pointed to work defending Google in high-profile copyright litigation. Banke, who hired Scherb after an exam exercise in which he drafted a summary judgment opinion, praised his analytical depth and drafting.

"Sometimes we'd start down one road, and after Matt reviewed the record and law, he'd suggest -- in his most engaging manner -- that I might like to rethink the issue," she said. "Usually I agreed, and we'd switch gears."

Banke addressed concerns about direct appointments to courts of appeal, noting that several 1st District justices also were elevated without prior judicial service.

"Direct appointees serve two important purposes: First, they bring truly exceptional talent into the courts. Second, they enhance diversity in background and perspective." She also cited Scherb's resilience in navigating a lifelong visual challenge: "Matt will be a special role model for those who confront physical challenges we can't possibly imagine in our daily lives."

Jenkins praised Scherb's integrity and consensus-building.

"He has learned to put aside assumptions, to inquire deeply, to work hard to develop a full, accurate picture of the issue before him." He added that Scherb's sourdough bread "became a beloved staple in my chambers."

The Commission on Judicial Appointments is comprised of Chief Justice of California Patricia Guerrero, Attorney General Rob Bonta and presiding justice of the court the nominee is seeking to join -- in this case, Presiding Justice Arthur Gilbert.

During questioning, Bonta asked how Scherb would shift from chambers attorney to independent jurist. "One is to develop my own voice and conception of the job and of the law -- to have the opportunity not just to assist in the law's development as aid to a justice, but to be in that role myself," Scherb said.

Guerrero pressed him on managing personal views, including reservations about the death penalty. "All of us have some deeply held personal beliefs," Scherb said. "But it's not our role at the court to act on our policy preferences. Our role is to act on the law as written by the Legislature and as interpreted by the California Supreme Court, the United States Supreme Court."

Gilbert, appearing at his final confirmation hearing before retirement, told Scherb, "You and I met briefly, and I know by your demeanor and impressive background you're going to be a star on the court of appeal."

The State Bar's Commission on Judicial Nominees Evaluation (JNE) rated Scherb "well-qualified," its highest designation, citing "superior fitness to perform the appellate judicial function with a high degree of skill, effectiveness and distinction."

At his investiture, Scherb took the constitutional oath administered by the chief justice. In brief remarks, he thanked mentors, colleagues, family, and friends and pledged his commitment to the bench. "I will do my best every day to fulfill the oath of office I took moments ago and to serve the people of California," he said.

Following Scherb's confirmation, the commission considered San Bernardino County Superior Court Judge Corey G. Lee, whom the JNE commission found more than qualified for appellate service. Lee received unanimous confirmation to the 4th District Court of Appeal, Division 2.

4th District Justice Michael J. Raphael, San Bernardino County Presiding Judge Lisa M. Rogan and lifelong friend Lauren Nga La praised Lee's legal acumen, resilience and character.

Raphael, who worked with Lee when she was an assistant U.S. attorney, said she "was a star from the start" among highly credentialed colleagues and rose to supervisor faster than nearly anyone in the office's history.

Lee's decade on the bench includes presiding over the court's appellate division and serving as a pro tem justice, following seven years as a federal prosecutor and earlier service as a deputy district attorney in Riverside and San Bernardino counties.

Rogan described two moments that revealed Lee's temperament: one in which defendants launched racial attacks at her, and another in which Lee unintentionally offended a colleague with a hand gesture and immediately sought forgiveness. "It doesn't matter about the legal acumen. It matters about the person," Rogan said.

Nga La recounted Lee's experiences as a Korean immigrant in Santa Fe Springs and her instinct to stand up for others who were taunted.

Gov. Gavin Newsom nominated Lee to fill the vacancy created by Justice Marshall Slough's retirement. The commission -- Guerrero, Bonta and Presiding Justice Manuel Ramirez -- unanimously confirmed her.

Lastly, the commission -- consisting of Guerrero, Bonta and Administrative Presiding Justice Brad R. Hill -- reviewed the appointment of Judge Arlan L. Harrell as justice of the 5th District Court of Appeal in Fresno. Fresno County Superior Court Judges Jon B. Conklin, Kimberly Gaab and Alan M. Simpson testified in support of Harrell.

Conklin has worked alongside Harrell for 20 years, most recently serving together on the felony trial court -- Harrell on the sixth floor, Conklin on the seventh.

"I turn to Arlan daily," Conklin said. "He's been a career saver many times."

"Humility, mutual respect, thoughtfulness, excellent reasoning," Conklin continued, listing Harrell's qualities. "He will bring an excellent tone to the job."

Gaab commented that "It will be a great loss to the Fresno Superior Court, but our loss will be the 5th District Court of Appeal's gain."

Harrell responded to a question from Bonta regarding those, who call for Judges to be removed from the bench when their rulings go against a political representatives point of view by saying, "We are the last safe haven of the constitution and for those who undermine that do so at their own peril."