Government
Aug. 17, 2002
What Went Wrong?
SAN FRANCISCO - Boris Feldman would appear to be a natural candidate for an appointment to the federal judiciary. A highly regarded securities litigator at Wilson Sonsini Goodrich & Rosati, he has the connections, skill and gravitas for the job and campaigned intensely for appointment to the U.S. District Court in San Francisco, according to lawyers familiar with the process.
A highly regarded securities litigator at Wilson Sonsini Goodrich & Rosati, he has the connections, skill and gravitas for the job and campaigned intensely for appointment to the U.S. District Court in San Francisco, according to lawyers familiar with the process.
Despite all that, Feldman was not among the four candidates recommended to the White House for a vacancy in the Northern District.
Last month, the White House nominated Jeffrey White, 56, a litigator at Orrick Herrington & Sutcliffe, and sent his name to the Senate Judiciary Committee.
White's success and Feldman's lack of the same offer a glimpse into the web of personal, professional and political attributes and skills that count in the selection process for the federal judiciary.
The Judicial Advisory Committee that reviewed Feldman is composed of six members: three selected by U.S. Sens. Dianne Feinstein and Barbara Boxer and three by Gerald Parsky, President Bush's state chairman for judicial appointments. There are four such committees in California, one for each of the federal districts in the state. The committees have nothing to do with appointments to the U.S. Circuit Court of Appeals.
Applying to the federal bench is not unlike applying to college. The committee reviews letters of recommendation and interviews colleagues as well as lawyers who have served as opposing counsel to the applicant. It evaluates an applicant's career and, finally, interviews Northern District candidates at the offices of committee chairman Joe Russoniello's law firm, Cooley Godward.
"The game is played exactly how you imagine it to be played," said Rory Little, a professor of constitutional law at Hastings College of the Law and a close observer of the judiciary. "When you're in the running, you start to call in all your chips. You talk to people you haven't had contact with for years."
Feldman, who declined to be interviewed for this story, had collected an impressive stack of chips, including undergraduate and law school degrees from Yale, according to Wilson Sonsini's Web site. Luminaries, including Abraham Sofaer, a retired U.S. district judge in New York and now a fellow at the Hoover Institution at Stanford University, said they wrote letters to the committee in support of Feldman.
Feldman, who clerked for Sofaer in 1980-81, would make an excellent judge, Sofaer said in an interview. In addition to being "enormously productive," Sofaer said, Feldman is "funny and brilliant, both, and very human."
Sofaer said former U.S. Secretary of State George Shultz, also a Hoover fellow, wrote a letter supporting Feldman.
"I find it stunning that a guy so qualified [as Feldman] wouldn't make it into a final batch" of candidates for the federal bench, said Patrick Coughlin, a partner at Millberg Weiss Bershad Hynes & Lerach. Coughlin has served as opposing counsel to Feldman on a number of high-stakes shareholder class actions. He said Feldman has skillfully negotiated settlements for many of his Silicon Valley clients, which include Genentech Corp., 3Com Corp. and Network Associates Inc.
Coughlin recalled a securities class action in which U.S. District Judge Charles Breyer was poised to throw out his complaint but first asked Coughlin if he had any more evidence.
When Coughlin said he'd try to find some, Feldman objected. "He's like a peddler," Coughlin recalled Feldman saying to the judge. "Whatever you want, he has in his bag."
Breyer laughed at the remark "and then threw my case out," Coughlin said.
Attorneys said Feldman possesses an intuitive understanding of business that would make him an especially good judge in the Northern District, site of many shareholder class actions.
"His advice goes beyond pure legal competency to being useful on a practical level as well," said Mark Michael, vice-president and general counsel at 3Com.
Shirli Weiss, a partner at Gray Cary Ware & Freidenrich in San Diego who has served as co-counsel with Feldman on numerous cases, called him "charming."
"He's a person you'd have dinner with by choice, which you wouldn't always say about lawyers," she said.
After Weiss won a case in the 9th Circuit for Vantive Corp., she said, Feldman was the first to congratulate her.
"This is someone who takes the time to build relationships with people where there's no ulterior motive or hidden benefit he's looking for," she said.
Millberg Weiss attorney William Lerach said Feldman possesses a healthy degree of skepticism about his own corporate clients. Lerach said he and Feldman have freely exchanged information about the merits of their cases and have made deals over the phone without a written agreement or handshake.
In one such matter, "we agreed if the judge did something adverse, that it wouldn't affect the verbal agreement we had to settle the case," Lerach said. "Boris is good for his word as far as I'm concerned."
Feldman, 46, comes from a large family in South Bend, Ind. He and his wife, Robin, have four children, who are featured on a Web site Feldman enjoys sharing with acquaintances, www.borisfeldman.com.
Robin Feldman was a lawyer at Morrison & Foerster, has taught at Stanford Law School, volunteers as a judge pro tem in Santa Clara County family court and became a full-time faculty member at Hastings College of the Law this year.
A spouse with accomplishments like that cannot hurt, Little said. "All of this comes into play."
So what happened? With so many chips to play, how did Feldman fail in his bid for a nomination to the federal bench?
Some lawyers said there is another side to Feldman that the committee may have unearthed in its interviews of colleagues.
Lawyers who spoke on condition of anonymity said Feldman is a political, divisive figure who uses "sharp elbows" to advance his own interests at the expense of colleagues at Wilson Sonsini.
"He is someone who rewards his friends and rewards loyalty to him, and punishes those who he perceives as being disloyal to him," one source said.
During "auditions," the process through which corporate directors select an attorney to represent their company in shareholder class actions, Feldman has openly derided his competitors to win a contract, a practice viewed as uncouth in some circles, the source added.
"He's willing to share his disregard for other people in the securities litigation field," said the source. "That's not a way of winning friends."
In terms of experience, lawyers said, Feldman has tried few, if any, jury cases to verdict, a skill Russoniello said is important for nominees to the federal bench.
"I'd say this is not a position that lends itself well to on-the-job training," said Russoniello, chairman of the bipartisan committee and U.S. attorney for the Northern District of California from 1982 -1990.
"It's not riding a bicycle."
And with corporations under siege amid historic levels of fraud, Feldman's background as a securities defense specialist might have worked against him, some legal observers speculated. Feldman also has argued on his Web site in favor of business deregulation, said Reed Kathreine, another Milberg Weiss partner who has served as opposing counsel to Feldman.
"He is defending what is probably perceived as the bad guys," Kathreine said.
Other lawyers who know Feldman well, including detractors, said they believe he fell victim to politics. It takes the support of four committee members to forward a name to the White House, meaning Feldman, a Republican, needed the support of at least one Democrat.
Michael Ohleyer, a partner at Titchell, Maltzman, Mark & Ohleyer, who was appointed to the advisory committee by Boxer, said political affiliation doesn't play a pivotal role in the nomination process. Still, he conceded, the committee is structured to produce politically moderate candidates.
Feldman is liberal on many social issues, according to attorneys who know him well. But in the single response he provided for this story, Feldman identified himself by e-mail as "a proud Republican."
Since 1998 he has donated to six Republican candidates nationwide, including $2,000 to George W. Bush's presidential campaign, according to Federal Elections Commission records. He donated to one Democratic candidate, Bill Bradley, in that same period.
White, by comparison, called himself "apolitical," a "stealth candidate." Although White has served as national chairman of Orrick's litigation department for 15 years, few Bay Area lawyers interviewed about his appointment knew who he was.
At the time of White's nomination, Eleanor Swift, a colleague of White's at Boalt Hall, said White himself was surprised he had prevailed.
"Jeff is not someone who has been grooming himself to be chosen in this intensely political environment of judicial appointments," she said.
Whether Feldman didn't get the appointment because of a personal or professional flaw, or because of his politics, or because his high profile contrasted unfavorably with White's anonymity, his quest isn't over.
According to Bruce Vanyo, his longtime mentor at Wilson Sonsini, Feldman intends to apply for a spot on the 9th Circuit or wait for another federal district court vacancy. He might even consider a state court position, Vanyo added.
Russoniello said the committee has a standing policy that applicants will be reconsidered for new vacancies unless they ask for their names to be withdrawn.
"I can't imagine there would be any basis on which a person would be disqualified or suffer any debility or disadvantage by having previously submitted his or her name," Russoniello said.
Joel Rosenblatt
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