Selecting Substitute Justices: a New Plan

Judges who fill temporary vacancies on the California Supreme Court should be chosen by the court as a whole to assure that chief justices do not use the appointments to help obtain the decisions they want in close cases, a new study urged Tuesday.

The selections should be made by rotation or random choice rather than under the current practice, which has led to charges that chief justices can “pack” the court in their favor, two UC Berkeley law professors said in a study which is to appear today in the Pacific Law Journal.

The study showed that over the past 30 years, temporary appointees to the court have voted more often with the chief justice than have the permanent members of the court--sometimes providing pivotal votes in big cases.

Supporters of Chief Justice Rose Elizabeth Bird immediately attacked the study as a partisan effort to undermine her campaign for confirmation by the voters this fall.

Bird herself, in response to questions about the study, issued a brief statement to The Times calling the proposal “an invitation to cronyism, where only an elite and favored few are allowed to sit.”

An aide to the chief justice added that in the current process, “no attempt is ever made to predetermine the views of a particular assigned justice on a particular issue.”

Bird’s supporters were joined in their criticism by John M. Felder, the managing editor of the Pacific Law Journal. Felder, a third-year law student at McGeorge School of Law in Sacramento, assailed the article as a “poorly veiled attempt” to discredit the chief justice.

The authors of the 156-page study, Profs. Stephen R. Barnett and Daniel L. Rubinfeld, brushed aside the contentions, pointing out that their research on a longstanding political and legal issue began more than three years ago.

“It’s not an attack on anyone,” said Barnett. “We set out certain facts and let people draw their own conclusions.”

The authors found that in key cases Bird’s appointees over a seven-year period actually agreed with her at a lower rate than the appointees of three previous chief justices.

Nonetheless, Barnett and Rubinfeld concluded that there was enough evidence of bias by temporary appointees favoring the chief justice who appointed them to warrant giving the assignment power to the seven-member court as a whole.

“The present system,” the authors said, “threatens the reputation and integrity of the court.”

Richard C. Neuhoff, an attorney working for the pro-Bird Committee to Conserve the Courts, said that despite the comparatively neutral findings of the study, its timing indicated that it was politically inspired.

Felder acknowledged that he had written the chief justice to say the law journal’s editorial board had not realized the nature of the article until it was too late to stop its publication. Felder said the article had been accepted by previous editors at the Law Journal and said he would like to offer his “personal apologies” for publishing the study. He added that he hoped that Bird “can conquer your adversaries and win the election in November.”

The state Constitution for 60 years has authorized the chief justice to assign judges to serve temporarily when regular court members are absent or have disqualified themselves from a case. Temporary assignments are currently made in nearly 70 such cases a year.

Recently, however, critics have charged that the practice can be abused by the appointment of a judge who can be counted on to provide a critical vote supporting the chief justice.

Last year, for instance, the California District Attorneys Assn. accused Bird of “packing” the court with temporary appointees sharing her liberal political views.

Barnett and Rubinfeld, examining the results in hundreds of cases through the years, contrasted the rate of agreement between the appointees and the chief justice with that between the permanent members of the court and the chief justice.

In so-called “swing cases,” in which the vote by an appointee was decisive to the outcome, appointees of Chief Justice Phil S. Gibson from 1954 to 1964 agreed with him 21% more often than permanent justices agreed with him, the study showed.

Appointees of Chief Justice Roger J. Traynor from 1964 to 1970 agreed with him 21% more often in such cases and appointees of Chief Justice Donald R. Wright from 1970 to 1977 agreed with him 24% more often, it said.

The study divided Bird’s appointments into two periods. From 1977 to March, 1981, it said, Bird’s appointees agreed with her in “swing cases” 49% more often than did the permanent justices, but from April, 1981, through 1984 the agreement rate dropped to 4%. For the entire period the overall figure was 8%.

‘No Clear Favoritism’

The authors said that until 1981, Bird, herself an appointee of Democratic Gov. Edmund G. Brown Jr., had tended to favor appointees also named by Democrats but that after that there was “no clear favoritism” for such appointees.

In 1981, the study noted, Bird began to implement a new policy of broadening the appointment process to include more appellate and trial court judges than had her predecessors.

Bird’s appointees on occasion have provided pivotal votes in important cases, the authors observed.

For example, in 1982, with such an appointee joining Bird in the majority, the court ruled 4 to 3 that a redistricting plan drawn by a Democrat-controlled Legislature would be used for that year’s election even though it was being challenged under a Republican-sponsored referendum.

Stephen T. Buehl, executive assistant to the chief justice, said it would be incorrect to suggest that there was a change in policy by the chief justice in 1981, leading to a sharp drop in the rate of agreement by temporary appointees.

Bird, he said, decided shortly after taking office to depart from the previous practice of assigning a “favored few” appellate court justices to sit with the state Supreme Court.

He noted that the chief justice has appointed about 800 different judges to sit temporarily in the state Court of Appeals and the Supreme Court in an effort to “give as many people as possible” the opportunity to sit on higher courts.