Plans Would Alter Way of Picking High Court Justices

In the wake of an acrimonious fall election campaign, new legislative efforts are under way to change the way California selects members of the state Supreme Court.

One proposal, a constitutional amendment introduced by Sen. Bill Lockyer (D-Hayward), would maintain the voter-confirmation system but also require that a majority of the state Senate vote to approve court nominees.

A more sweeping constitutional amendment, offered by Sen. Gary K. Hart (D-Santa Barbara), would scrap the voter-approval system, require confirmation by a two-thirds Senate vote and limit justices to a single 12-year term.

But the advocates of revision concede they face a difficult task--both in gaining approval by the Legislature, and as then would be required, by the voters. Meanwhile, the calls for change have caused sharp division among legal authorities.

A Point of Dispute

Some experts say the present system jeopardizes the independence of the judiciary by exposing judges to partisan political pressures. Senate confirmation and limited terms could provide a check on the judicial appointive power of the governor and assure turnover on the bench, while keeping the justices relatively immune from political influences, these authorities say.

“The judiciary is properly subject to political input and that can take place at the time of appointment through Senate confirmation,” says Dean Jesse H. Choper of the UC Berkeley School of Law. “But once a judge takes office, that judge should not have to look over his or her shoulder towards the electorate every time a decision is issued.”

But defenders of the present process say it provides both an adequate review of a nominee’s qualifications for office and the public accountability the electorate sought in 1934 when it abandoned directly contested elections for appellate justices but retained the power to periodically vote yes or no on them.

“Some liked the result of the last election and some did not,” says Bernard E. Witkin of Berkeley, a noted California legal author and adviser to the state Judicial Council. “But both sides were well-financed and put on the strongest kind of campaigns and the result represented popular feeling about an important public issue. In short, the system worked the way it was supposed to work.”

There also is vigorous opposition to change from foes of former Chief Justice Rose Elizabeth Bird who cite the defeat of Bird and two other justices in November as evidence of the need for periodic voter review of a judge’s record.

“The public likes the system,” says Sen. H. L. Richardson (R-Glendora), a leading conservative critic of the liberal-dominated Bird Court. “The voters cleaned house last fall because the court had gone too far. . . . The process has worked--and you’re not going to get the people to give up this kind of power.”

Under the current system, the governor is required to submit the names of prospective Supreme Court nominees for confidential, nonbinding evaluation by a special commission of the State Bar.

The next step is review by the state Judicial Appointments Commission, a group established by the 1934 voter initiative that is made up of the chief justice, the state attorney general and the senior presiding justice of the Court of Appeal.

Upon confirmation by the appointments commission, the nominee is sworn into office and takes the bench. But the justice still must go before the voters for confirmation at the next gubernatorial election and again for retention upon expiration of the 12-year term he is filling and every 12-year term thereafter. Until last fall, no justice had been defeated in the 50-year history of the state’s judicial confirmation elections.

Hart says the present system undermines the judiciary by forcing justices, who he believes are supposed to be above the political fray, to appeal for votes just as do candidates for legislative or executive office, raising the risk that they will tailor their decisions to suit the electorate.

“Do we really want justices to have to do what politicians have to do--hustling money for their campaigns and doing 30-second spots on television?” asks Hart.

Hart sees Senate confirmation as providing a closer examination of a judicial nominee than is performed under the present system.

Role for Governor

The Judicial Appointments Commission, he notes, may be inhibited in evaluating a nominee when that nominee likely will end up serving with the chief justice, hearing cases presented by the attorney general and may currently be a colleague of the presiding justice of the Court of Appeal.

Hart’s plan also calls for each newly elected governor to select a new chief justice from among the members of the court, thus ensuring that no single justice becomes too entrenched as the court leader.

Last fall’s tumultuous election, resulting in the rejection of Bird as well as Justices Cruz Reynoso and Joseph R. Grodin, caused widespread concern that more and more justices throughout the appellate system could face similar organized opposition in future campaigns, thus “politicizing” the judiciary.

Lockyer wants to keep the voters in the process--but believes Senate confirmation for nominees to the Supreme Court, along with the state Court of Appeal, would serve to screen out appointees whose judicial philosophies provoke passion and division within the electorate. “The Senate confirmation process would be constructive in that regard,” he says.

In the federal system, U. S. Supreme Court justices and other judicial appointees must win approval by the Senate.

In the past, other proposals have been introduced in the Legislature requiring Senate confirmation for justices. Some passed in the Senate but later died in the Assembly, and some legislative observers say the current proposals may well meet the same fate.

“There are some who want to tinker with the system but there are also some who are exhausted from what we went through on this issue during the last election and want to maintain a low profile,” says one key Senate aide. “They also want to see how the new court works out,” the aide adds, referring to a court that is now led by Chief Justice Malcolm M. Lucas and that has five appointees of Gov. George Deukmejian.

Resistance to change also has come from the state Judicial Council, the policy-making arm of the judicial system. The 21-member council, now led by Lucas, voted in March to recommend that the Legislature turn down both the Lockyer and Hart proposals.

A review of the proposals by the Judicial Council staff cited numerous objections to the measures, saying that Senate confirmation would invite political conflict when the governor is of one party and the Senate is controlled by the other. Such a conflict, it said, “could color the questioning, debate and vote” on whether a nominee is qualified for judicial office.

The present system, the staff report concluded, “serves the public interest well.”

Hearings are set tentatively for late this month on the Hart proposal and for an undetermined date on the Lockyer measure. Hart plans to invite both current and former members of the court to testify about the need for change--if any--in the present system.

In three years, at the next gubernatorial election, Lucas, as the new chief justice, and Justices Edward A. Panelli, John A. Arguelles, David N. Eagleson, and Marcus M. Kaufman all are scheduled to be on the ballot. Justice Allen B. Broussard would not go before the electorate until 1994, and Justice Stanley Mosk until 1998.