Kaufman Cites ‘Good Sound Judgment’ of Realigned Panel : High Court Expected to Blaze Fewer Trails

Rather than blaze new judicial trails, Justice Marcus M. Kaufman expects the newly aligned state Supreme Court to try to restore public confidence by showing “good sound judgment” in its decision-making.

“I do not equate a good court necessarily with one that is on the cutting edge of the law,” Kaufman said in an interview last week. “What is needed are good, well-reasoned decisions that can be understood and respected by the great majority of the population.”

Kaufman, regarded as the most scholarly and conservative of the three new justices appointed by Gov. George Deukmejian, stood by criticism he made previously of the liberal-dominated court under former Chief Justice Rose Elizabeth Bird.

Many of the old court’s decisions were “not soundly reasoned,” he said. “The fact that the public lacked confidence in the court was self-evident from the election,” he said, referring to the defeat of Bird and two other court members in the bitterly fought fall campaign.

Kaufman, who served 18 years on the state Court of Appeal as an appointee of Gov. Ronald Reagan before his elevation to the high court last spring, discussed a wide range of subjects in the first full-scale interview granted by one of the three new justices.

Among other things, he urged changes in the judicial appointment and confirmation system; suggested that appellate courts play a role in deciding death-penalty cases; said state courts should defer to federal courts on certain constitutional issues, and spoke enthusiastically of the “open-mindedness” and tension-free atmosphere he has encountered on the new court.

As is customary, he did not discuss pending issues or cases before the court.

For the 58-year old Kaufman, his appointment to the state Supreme Court represents something of a homecoming. Thirty-one years ago, after completing law school at USC, he served as a clerk at the court for Justice Roger J. Traynor, who later became its widely respected chief justice.

Sitting in shirt-sleeves in his newly refurbished chambers with photographs of Traynor and Reagan on the wall, Kaufman recalled with a smile when one of the justices often came to work in a bright Hawaiian shirt--and when most of the court staff set aside its work one day to cluster around a television set to watch Don Larsen of the New York Yankees throw a perfect game in the World Series.

“This hallway is the same as it was 31 years ago,” he said, gesturing toward the fourth-floor corridor. “There was much nostalgia in coming back.”

Kaufman has joined the court at the end of an era in which it drew wide attention and considerable controversy as one of the most liberal and innovative state courts in the nation.

Many landmark decisions were based on its own independent analysis of the state Constitution, rather than U.S. Supreme Court rulings on the federal Constitution. In several instances, the state court extended greater protections to criminal defendants and other individuals than required by the federal court.

The new court is expected to be more conservative, and to more often defer to the U.S. Supreme Court. In the interview, Kaufman stressed his view that the new court should look to established legal principles rather than seek “new vistas” for their own sake.

Asked what he expected from the new court, he replied: “Good solid judgment. . . . A realization on the part of the justices that they are making law for the whole state that has to be respected.”

Kaufman also expressed reservations about the doctrine of “independent state grounds,” which was often invoked by the court previously.

Vitality of Constitution

Generally, he said, he believes that while the state Constitution has “independent vitality,” the state court should follow the U.S. Supreme Court where provisions of the state and federal Constitutions are substantially the same.

“When the provisions are identical or very similar, it causes consternation to the public and engenders lack of confidence when (the court) interprets it in a different way than the federal court or, indeed, in an opposite way. That can’t engender respect.”

In other instances, he said, it is “entirely appropriate” to consider independent state constitutional provisions in deciding a case.

Kaufman said he expected the new court to give greater deference to state trial and appeal court rulings, saying it “perhaps is going to be true” that the new court will be less inclined to overturn convictions because of procedural errors at trial.

The justice also discussed these subjects:

- COURT OUTPUT. The heavy case backlog and the inherently complex transition has substantially slowed the new court’s output of decisions, he said. “I’m sure people must wonder, ‘We’ve got this newly composed court--where are all the decisions?’ ”

The case flow should increase soon, he said, adding that like other court members, he is concerned that the ever-increasing number of petitions to the court requires the justices to spend half or more of their time deciding what cases to accept for review.

- DEATH PENALTY APPEALS. There is “a lot of merit” in proposals to bring the state appeal courts into the process of deciding death penalty cases, which now are automatically sent directly to the state Supreme Court.

It would seem worthwhile, he said, to have such cases sent first to the Court of Appeal, where the trial record and legal issues could be better distilled before going on, if the death penalty were affirmed, to the high court.

- JUDICIAL CONFIRMATION. Kaufman suggested that the review by the state Judicial Appointments Commission of nominations to the appellate and Supreme Court should be revised to provide for a full-scale hearing that would be held well before any justice was confirmed and sworn into office.

Such hearings are now largely a formality. No nominee has been denied confirmation in more than four decades, and commission votes ordinarily are taken immediately at the conclusion of the proceedings.

Kaufman, whose appointment drew opposition from regional leaders of the National Organization for Women and People for the American Way, said that witnesses who spoke against him “must have been disillusioned and disappointed” when the commission approved his nomination so quickly after they testified. An earlier hearing would enable the commission to give greater consideration to any such testimony before a vote was taken, he said.

- NEW CHIEF JUSTICE. Bird’s successor, Chief Justice Malcolm M. Lucas, has performed “superbly” as the new court leader, Kaufman said. “If you went to Central Casting, you couldn’t pick anyone better to be chief justice,” he said, laughing. “He’s got the demeanor and the talent. He’s near perfect for the job.”

On the bench, Kaufman has been an aggressive interrogator of the attorneys who appear before the court in oral argument. He acknowledged that at times he has probably been “overly argumentative,” adding good-naturedly that “sometimes it’s hard to resist.”

The new court, Kaufman continued, operates in a relaxed, friendly and open-door atmosphere. “There’s a very optimistic, upbeat feeling,” he said. “Everyone seems to be pulling together and anxious to do the best job possible. It’s really great.”

Kaufman, illustrating his point, recalled how the justices seemed in general agreement on one case, but then, after hearing oral argument by attorneys, began to shift their views as they met in conference and listened to each other in a free-ranging discussion.

The court, he said, ended up with a “somewhat different” conclusion in the unidentified case.

“ ‘Man,’ I thought, ‘this is the way it’s supposed to work,’ ” Kaufman recalled. “It was thrilling to see the court work exactly as it is supposed to. The oral argument was good. The justices were open-minded. It was just a fantastic experience.”