Color Our New Court Bland : Governor’s List Adds Geography to the Diversity Issue

The opportunity to fill three vacancies on the California Supreme Court at the same time poses profound political questions. Should the composition of the court reflect the state’s ethnic and geographic diversity? Would it be a “step backward” to no longer have a woman or a Latino among the justices? Is the longstanding northern tilt of the court being replaced by a southern tilt?

The suggestion that a high court should reflect a cross-section of the community is not of recent vintage. For many years the U.S. Supreme Court maintained an unspoken tradition of a “Catholic” seat and a “Jewish” seat. Such traditions begin when a groundbreaking appointment of the “first” is ballyhooed as an event of great historical significance. Once the precedent is established, a subsequent Administration ignores it at the peril of slighting every member of the same group.

Purists will protest that courts aren’t supposed to be representative bodies. Unlike legislators, judges don’t have constituencies. Cases should be decided according to “the law”--not to satisfy the aspirations of feminists, minority groups or local interests. Like most oversimplifications, this view focuses on only one dimension of a complex process.

Many of the court’s cases pose policy questions of great social significance. Judges bring more than intellectual rigor into the conference room. They also bring a unique blend of attitudes and values shaped by their life experiences. The quality of justice is profoundly influenced by the diversity of perspectives that the justices represent.

Gov. George Deukmejian’s list of six potential nominees for the three vacancies includes a woman and a Latino. This suggests his sensitivity to the fact that the first woman and the first Latino ever to sit on the court were removed after an extremely divisive election contest in which he played a key role.

But the nomination of Judge Patricia Benke seems odd for a governor who values a proven track record. Her three years of judicial experience are meager when compared to the average of 17 years on the bench for each of her five male competitors. She is the only one of the six who lacks experience as an appellate judge. And her youth (she is 37) would place her among the youngest justices to sit on the court. The five men on the governor’s list range in age from 57 to 62. Is Benke simply a “straw woman,” put on the list to mollify the outcry when the court once again becomes an “old boys’ club?”

Justice John A. Arguelles would appear to have an inside track if the governor is responsive to the demand for ethnic diversity. He hardly ranks among the intellectual giants of the California bench, but he compares favorably with his competition. It will be difficult for Deukmejian to point to any objective differences to justify the exclusion of Arguelles from the final trio.

While public attention has been riveted on the presence of a woman and a Latino on the list, the geographic distribution of the candidates signals a change of even greater potential consequence. Recent years have witnessed a subtle transformation in California politics, in which all statewide offices with the exception of lieutenant governor have been captured by Southern Californians. A dramatic shift of political power from north to south obviously is taking place.

For more than a century the California Supreme Court has been dominated by judges from the north, with a minority of Southern California “commuters.” The only “commuter” currently on the court, Justice Malcom M. Lucas, has been nominated to serve as the new chief justice.

All three of the defeated justices were from Northern California, and there is a substantial likelihood that they all could be replaced by Southern Californians. Justice Arguelles and Justice David N. Eagleson are from the Los Angeles area, while Justice Marcus M. Kaufman lives in San Bernardino, Judge Benke in San Diego and Justice Hollis Best in Fresno. Justice James B. Scott of San Franciso is the only northerner on the list.

The potential effect of such a geographic shift cannot be dismissed lightly. Many controversies that find their way to the high court present the divergent interests of north vs. south--including water rights, land-development controversies and environmental issues. The place that a judge calls home can affect his or her perspective as much as sex or ethnic background can.

The selection of the three finalists is more than a simple search for the “best qualified.” It requires a balance of many factors of great political consequence. The sex and ethnic backgrounds of the justices are not cosmetic incidentals, and should not be treated as such. The geographic balance of the court is an important consideration.

Ultimately the appointments to the court must be evaluated not just for their individual merit but for their collective effect as well. The moral authority of the court’s judgments will be enhanced if they are perceived as emerging from a deliberative process in which the diversity of values and perspectives of the entire state are fully represented.