Swift Choice for Bird Seat Vowed : Experts Expect Court Changes to Be Gradual

The California Supreme Court, for decades one of the most liberal and trend-setting courts in the nation, now is likely to shift toward moderation and conservatism as Gov. George Deukmejian names successors to the three justices defeated in Tuesday’s election, legal experts said Wednesday.

The voters’ historic rejection of the three jurists gives the governor, their most prominent critic, the opportunity to place a total of five appointees on the seven-member court.

There has been widespread speculation that Deukmejian will name Justice Malcolm M. Lucas, his former law partner and his first nominee to the court, to succeed Chief Justice Rose Elizabeth Bird. Lucas, a former federal district court judge, is regarded as the state court’s most conservative member.

Panelli a Possibility

Justice Edward A. Panelli, a Deukmejian appointee viewed as a moderate, is seen as a candidate for chief justice should Lucas not receive or want the nomination. Panelli, Lucas and Justice Stanley Mosk, the court’s senior member and an appointee of Gov. Edmund G. (Pat) Brown, all were confirmed by wide margins by the voters.

Observers note further that with the departure of Bird, the first woman to serve on the court, it might be politically advantageous for the governor to name another woman, such as U.S. District Judge Pamela Ann Rymer of Los Angeles.

Similar speculation has centered on state Appellate Justice John A. Arguelles of Los Angeles as a potential appointee to follow Reynoso, the court’s first Latino justice.

In the aftermath of the election, there was wide agreement that the vote brought an end to an era in which the state’s highest court has extended far-reaching protections to criminal defendants and has greatly expanded guarantees for individuals in consumer, civil rights and other actions.

In particular, a new court, dominated by Deukmejian nominees, is likely to affirm many more death sentences. The court reversed 58 of the 61 capital sentences it reviewed during the nine-year tenure of Bird, who was turned out of office by a 2-1 margin.

But experts, including both critics and supporters of the court, do not expect that what will be a more conservative court will abruptly overrule many of the major precedents long established in past decisions. More likely, they say, the new court will move gradually, narrowing the scope of past rulings and being much more cautious in its own decisions.

“I don’t see any wholesale reversals of precedent,” said Dean Gerald Uelman of the University of Santa Clara Law School, a backer of Bird and the other justices on the ballot. “Conservative judges, like those the governor is likely to appoint, have great respect for precedent--even liberal precedent. It’s more likely they will nibble away at those rulings, rather than abruptly throw them out.”

“There will be a definite realignment on the court,” said John Findley, director of litigation for the Pacific Legal Foundation, a conservative public-interest law firm that often defends the rights of property owners. “We’ll see the appointment of experienced judges who are ‘strict constructionists’ of the law . . . but strict constructionists are reluctant to overturn precedents.”

Several experts suggested that the new court would be more willing to overturn recent precedents than long-established ones that have served as the basis for many decisions over the years. For example, the 11-year-old doctrine of “comparative negligence,” under which plaintiffs who are partly to blame for their injuries can still sue for damages, will not likely be overturned, they said. But a new court might well reconsider the court’s 3-year-old decision interpreting state civil rights law to bar landlords from discriminating against families with children.

Terms End Jan. 5

The transition process for the court will begin soon. Under law, Bird and Justices Cruz Reynoso and Joseph R. Grodin, the other two court members who were defeated at the polls, may serve out their current terms ending Jan. 5. Unless they resign or otherwise decline to participate, they can vote and write opinions until that time.

Meanwhile, the governor must send the names of prospective successors to the State Bar’s Commission on Judicial Nominees Evaluation. After that commission has made a confidential review of the prospective nominees and reports its findings to the governor, Deukmejian then would send his choices to the state Judicial Appointments Commission.

The Appointments Commission, made up of the chief justice, the state attorney general and the senior presiding justice of the state Court of Appeal, would hold public hearings and then vote to confirm or refuse to confirm the nominees. No Supreme Court nominee has been rejected by the commission since 1940.

Awkward Position

Bird could be placed in the awkward position of voting on the confirmation of her successor if such proceedings take place before Jan. 5. If they occur after that date--or if Bird declines to participate before then--an acting chief justice, appointed by Bird or the court as a whole, would serve on the commission in her place.

The list of prospective appointees starts with the list of six judges, including Rymer and Arguelles, who Deukmejian proposed for consideration last year as successors to Justice Otto M. Kaus, who retired. The list also included state Appellate Justices Hollis G. Best of Fresno; Marcus M. Kaufman of San Bernardino, and James B. Scott of San Francisco. The sixth, Panelli, ultimately was named to the post.

Other appellate justices who may be considered include Carl West Anderson of San Francisco; Armand Arabian and David N. Eagleson of Los Angeles and Daniel Kremer of San Diego.

In the aftermath of the acrimonious and hard-fought campaign, several legal experts expressed the hope that Deukmejian would not attempt to fill the vacancies with conservative activists but would try instead to achieve philosophical balance with his appointments. Bird, Reynoso and Grodin all were accused by critics of being overly reflective of the political views of Democratic Gov. Edmund G. Brown Jr., who named them to office.

Restore Court’s Greatness

“(Deukmejian’s) past appointments provide some hope that he will try to restore the greatness of the court, not just making the court more conservative but seeking a balanced point of view,” said Prof. Michael Moore of the USC School of Law. As an example, Moore noted the governor’s appointment of Panelli, an experienced jurist known more as a conciliator than a conservative.

Similarly, Prof. John Oakley of the UC Davis School of Law urged a return to the days when governors occasionally crossed ideological lines to make nominations to the high court. Oakley recalled, for example, that Democratic Gov. Pat Brown had appointed a Republican, the late Justice Louis F. Burke, to the nonpartisan seat.

Prof. Franklin E. Zimring of the UC Berkeley Law School agreed that the court likely will shift to the right, but he also warned, “it is easy to overestimate the ideological swing that will take place.”

Time for Caution

“This is a good time for caution and a cautious court does not routinely overturn precedent,” Zimring said. A more moderate court, he observed, “could help remove the blood-scent from judicial elections.”

As new members join the court, heavy attention will be focused on how the justices rule on the scores of capital cases they will be considering. The death penalty was at the center of the organized campaigns by conservatives to oust Bird, Reynoso and Grodin on the grounds they were refusing to carry out the state’s capital punishment law by voting repeatedly to overturn death sentences.

Much of the controversy has swirled around rulings the court made in 1983 and 1984 barring the imposition of a death sentence unless jurors specifically found that the defendant intended to kill his victim. Prosecutors say those rulings could eventually require retrials of dozens of capital cases.

Lucas, after joining the court in 1984, reluctantly joined the court majority in reversing some death sentences because of the two precedent-setting rulings. Then last year he announced he no longer considered himself bound by the decisions and would join with other court members in overruling the decisions if given the chance.

Won’t Speed Executions

The prospect of three new Deukmejian appointees will not likely speed the executions of the three defendants whose sentences have been previously affirmed. Those cases still face additional and potentially time-consuming proceedings in state and federal courts.

But legal experts predicted Wednesday that a new court will vote to affirm far more death sentences than the old court. “The likelihood of the court finding technical errors serious enough to warrant retrials will be significantly reduced now,” said Oakley. Defenders of the court had predicted that rejection of the three justices targeted for defeat would undermine judicial independence, with judges thereafter feeling pressure to tailor their rulings to please politicians and the electorate. Those concerns were repeated by some experts Wednesday.

“The message of the election was a very chilling one,” said Uelman. “All the judges in California must feel a cold breeze wafting through their robes.”

Justice Lucas, in a statement issued in San Francisco, expressed hope that the court, as an institution, would survive the bruising election battle. Despite what he called a “difficult, indeed painful time,” the court is “capable of surviving even the heaviest tides of social and political change,” he said.

“I am confident that the court remains equal to the challenge of maintaining its proud reputation as one of the most highly respected courts in our nation,” he added.