A D.C. Superior Court judge refused yesterday to open to the public a hearing of the D.C. Judicial Nomination Commission, which is considering the reappointment of the chief judge of the D.C. Court of Appeals, Theodore R. Newman Jr.
Judge Frank E. Schwelb denied a request by lawyers for The Washington Post that the commission be forced to open its doors to the public. The judge said the legal community and the public were "waiting for the selection of a chief judge" and that the naming of a chief judge might be delayed if the public were allowed to attend the commission's meetings.
Moreover, Schwelb said that the "chief judge's ability to function might be impaired" if there is a delay in renominating Newman, assuming the commission wishes to do that. Newman's four-year term as chief judge of the city's highest court expired Sunday and he is now technically acting chief judge.
Post attorneys argued that under the District's sunshine law the commission hearing should be public. Not opening the meeting, said attorney Kevin Baine, would "nullify the sunshine act." Assistant D.C. Corporation Counsel Martin L. Grossman said that the sunshine provisions did not pertain to the nomination commission's hearings.
Schwelb said during the two-hour session that confidential review of judgeships "makes an awful lot of common sense."
The seven-member commission has sole authority over designating the chief judge of the appeals court. Newman has requested reappointment.However, four of his colleagues -- Frank Q. Nebeker, Stanley S. Harris, George R. Gallagher and John W. Kern III -- were expected yesterday to testify against him.
The reappointment of Newman has become a major issue in the courthouse and the city. Newman's supporters say the challenge against him by some of his colleagues is motivated by philosophical reasons. Newman's opponents say there is a personality conflict between them and the chief that makes working with him impossible.
The meeting was scheduled for 3:45 p.m. yesterday in the court's private conference room. However, Schwelb did not end his hearing until nearly 5 p.m. and by then four of the commission members -- Chairman Frederick A. Abramson, William Lucy, John W. Hechinger Sr. and Mary Ann Stein -- had wandered into the judge's chambers to hear his ruling.
Abramson testified at the court hearing that many of the witnesses who were expected to appear before the commission had been told the meeting would be confidential. He also said the commission had decided against making a transcript of the proceedings.