Smooth Sailing for the New Court : Restored Public Confidence Will Avert Further Challenges

The three California Supreme Court justices who were removed by the people last November have now left their chambers. Soon, once Gov. George Deukmejian has made his nominations and those justices take their places, a new era on the court will begin.

But the November vote still leaves one wondering if the court has been rendered a chaotic shambles, permanently crippled in function and purpose? Further, must we fear wholesale repetitions of the actions by the voters?

I suggest that the answer to both questions is no .

More than 50 years ago the people, in their wisdom, placed in the California Constitution a provision reserving to themselves the power to approve or reject, periodically, the members of the state Supreme Court. The justices were given some protections, including lengthy, 12-year terms. And they were not to be challenged by other judicial candidates seeking their jobs.

In the ensuing half century, numerous confirmation elections have been held. Given many opportunities to do otherwise, in every instance before last year the people have approved all of the justices on every ballot. The historical record does not justify a fear that Californians are inclined to act precipitously or capriciously.

In a sense, the results of Nov. 4 were foreseeable. It seems evident that there has been a gathering public dissatisfaction with some of the perceived philosophical directions that the court had been taking, especially in constitutional, tort and property areas. This dissatisfaction was manifested in 1982 by substantially reduced electoral support for some of the justices.

That same year the people played an even more active role through the initiative process by adopting Proposition 8, the so-called victim’s bill of rights. This measure was aimed at erasing a number of controversial Supreme Court decisions. Among other things, it expanded the scope of admissible evidence, permitted consideration of public safety in granting bail, allowed the admission and use of prior convictions and removed the defense of diminished capacity.

So an accumulation of grievances, real or imaginary, had been building. These areas of respectful dissent focused in large part, but by no means exclusively, on the death penalty.

What will the new court be like? There is every reason for public confidence and optimism. Gov. Deukmejian’s appointments to the courts have been uniformly well received by both the bench and the Bar. His two previous appointments to the Supreme Court--Justices Malcolm Lucas and Edward Panelli--have been outstanding.

Doubtless there are areas of difference between them. But neither Lucas, the governor’s choice to become the next chief justice, nor Panelli is an ideologue or a zealot. Both respect precedent. Their records suggest a moderate to conservative approach to legal issues and to constitutional and statutory interpretation. Both believe in judicial restraint and are not inclined toward judicial adventurism.

If the governor’s next three appointments are of similar stamp, the public will be very well served. The judges I know whose names have been submitted by the governor to the State Bar’s Commission on Judicial Nominees Evaluation are exceptionally well qualified.

Every justice brings to the court his or her own experience and comprehension. It is reasonable to suppose that at the personal level the new justices will mesh with the veteran members and that the latter can seek and find a comfortable consensus. It may fairly be predicted that the strong personalities of the court will continue to demonstrate needed flexibility and powers of adjustment and accommodation. There will be teamwork and collegiality.

This by no means suggests a court that marches in a conservative lock step. For example, by various means the incoming court may conclude as to criminal cases that what is required constitutionally is a fair trial, not a perfect one.

The court will continue to be served by a superb staff of permanent lawyers and aides. These people will give needed support and continuity as the court grapples with a heavy caseload raising issues of vital importance to the economic, moral, social and political life of California.

The presence of three new members will present the court with a golden opportunity for a critical self-examination. It can carefully scrutinize its review processes and case-flow management. It can seek new ideas and innovative techniques for speeding up its work and increasing its productivity, thereby reducing its backlog. The court, which in 1975 filed 189 written opinions, wrote 125 in 1985.

The past few years have been a period of turbulence and intense public attention for the court. The so-called Tanner hearings in 1979 were a most distracting, expensive and wasteful experience. Coupled with the 1982 and ’86 elections, the hearings left undoubted wounds and scars, with time as the principal healer.

One may hope for a more tranquil period within which the new court can do its important work. Realistically, it must be anticipated that a certain degree of controversy will always swirl around the court. It remains at the center of a vortex of issues about which people feel very deeply.

Nevertheless, its seems probable that in its philosophical passage the direction pursued by the new court will more closely resemble a responsible mid-course correction than a right-angle or a “U” turn. In short, the sky will not fall. It may be reasonably predicted that the court will continue its important work faithful to its obligations and motivated by courage, pride, independence and professionalism. The court’s diligence and hard work will earn the public’s respect, confidence, patience and understanding.