Governor Lists 4, Including 2 Women, for High Court

Gov. George Deukmejian on Monday announced the names of four state appellate court justices, including two women, whom he is considering to fill an upcoming vacancy on the California Supreme Court.

Deukmejian submitted the names for evaluation by a special commission of the State Bar. After the nonbinding review, one of the candidates would be in line for selection by the governor to replace Justice John A. Arguelles, who is retiring March 1.

The four justices under consideration are:

- Patricia D. Benke, 39, of San Diego, a former state prosecutor and Superior Court judge who was the first woman appointed by the governor to the state Court of Appeal. Benke previously was on a list of six candidates for three posts on the high court filled by the governor in 1987.

- H. Walter Croskey, 55, of Pacific Palisades, a former Los Angeles lawyer whom the governor named to the Superior Court in 1985 and the Court of Appeal in October.

- Joyce Luther Kennard, 46, of Sherman Oaks, a former deputy attorney general, who was selected by Deukmejian for the Los Angeles Municipal Court in 1986, the Superior Court in 1987 and the Court of Appeal in 1988.

- Fred W. Marler Jr., 56, of Sacramento, who served with Deukmejian as a Republican floor leader in the state Senate in the 1970s. Marler, a former Redding lawyer, was named to the Sacramento Superior Court by then-Gov. Ronald Reagan in 1974 and was elevated to the Court of Appeal in July, 1987.

As he has in the past, the governor looked to candidates already well-established as judges in considering nominees for the high court. Of the governor’s five appointees to date, four came from the state Court of Appeal. The other, Chief Justice Malcolm M. Lucas, was a former law partner of the governor and a federal district judge.

“While possessing quite different backgrounds, these four jurists share several common traits,” the governor said in a statement issued in Sacramento. “They have extensive experience in the legal profession and have earned the respect of their colleagues.”

Concern for Reputation

Deukmejian, a leading opponent of former Chief Justice Rose Elizabeth Bird and two other liberal court members ousted in the November, 1986, election, added: “I am confident that whoever is ultimately selected will play a vital role in reestablishing the high court’s lofty reputation with the general public.”

Under current procedures, the Bar’s Commission on Judicial Nominees Evaluation has up to 90 days to complete a confidential evaluation of the candidates.

While the commission cannot block a nomination, it is free to disclose its decision to the public when it finds a judicial candidate unqualified.

After the governor announces his choice, the nomination must win approval by the state Judicial Appointments Commission. That commission will include Lucas, Lester W. Roth, senior presiding justice of the state Court of Appeal, and Atty. Gen. John K. Van de Kamp.

Whoever the nominee, the governor’s choice is expected by legal observers to provide the court with a jurist of the same moderate-to-conservative judicial philosophy shared by his previous nominees. Thus, the court’s ideological balance, with conservatives in a 5 to 2 majority, is likely to stay the same.

Speculation Refueled

As two of the four prospective nominees are female, earlier speculation that Deukmejian will name a woman to the post is likely to build in coming weeks. Bird was the only woman to serve on the court in its history.

Both Benke and Kennard would provide markedly different judicial philosophies from the liberal former chief justice, who in nine years on the bench voted to strike down all 68 death-penalty cases the high court reviewed.

“Both Patty Benke and Joyce Kennard would be the kind of justices who are going to follow the law--not try to rewrite the law in accordance with their own personal views,” said Robert H. Philibosian, a former Los Angeles County district attorney and chief assistant to Deukmejian when he was attorney general. “They were both tough, law and order judges in the past and they would be tough, law and order justices on the state Supreme Court.”

Philibosian added that, while he believes the governor welcomes the opportunity to appoint a woman or member of a racial minority to the court, he is certain the nominee will be selected on merit.

“The governor traditionally has made philosophy and judgment the key criteria--and then, within those parameters, tried to make selections reflecting the diversity of the state’s population,” he said.

Lorraine L. Loder, president of the Women Lawyers Assn. of Los Angeles, welcomed the inclusion of two women on the governor’s list and urged that one of them be the nominee.

“I hope that two of the four being women means the governor is serious and that it isn’t just being done for show,” Loder said. “There are dozens of women out there who are well qualified to serve on the Supreme Court. It’s important to the quality of justice in California that women and minorities be included on the bench, as well as white males.”

Janice Kamenir-Reznik of Encino, president of the California Women Lawyers, said both Benke and Kennard would be “quite capable.”

“We’re still suffering the loss of Rose Bird, which was a big blow to our organization,” Kamenir-Reznik said. “So we’re delighted that 50% of the list is female. We feel it’s very important to have a woman serving at the Supreme Court level.”

Pauline A. Weaver, Assistant Alameda County Public Defender and past president of the California Women Lawyers, said a Deukmejian appointment of a woman to the high court is “long overdue,” in view of the fact that an estimated 20% of the 115,000 attorneys in the state are women.

“We’re just sorry that the governor hasn’t yet named a woman,” she said. “It will surprise me if he doesn’t eventually appoint someone who is in tune with his political beliefs. He tends to choose like-minded people, although I’m sure he would deny there is a litmus test for the court.”

PROFILES OF THE NOMINEES Patricia Benke, 39, of San Diego is a former deputy state attorney general. Gov. George Deukmejian named her to the San Diego County Municipal Court bench in 1983, then to the San Diego Superior Court in 1985 and to the 4th District Court of Appeal in May, 1987.

Earlier this year, she was one of six finalists for three seats on the Supreme Court.

Benke worked on the mayoral and U.S. Senate campaigns of Republican Pete Wilson before beginning her judicial career.

If there is a persistent complaint about her actions on the bench, it is that she is too nice--willing to listen too long to all arguments. Benke pleads guilty: “I don’t like shooting from the hip . . . I’m not a trailblazer. . . .”

Former colleagues in the attorney general’s office regard her as quick-minded and tenacious. Benke was one of the first prosecutors to argue that law enforcement officers should be exempted from prohibitions against unconstitutional searches and seizures of personal property, if the officers were acting in good faith.

She is married to a public television production supervisor.

Joyce Luther Kennard, 46, of Sherman Oaks was elevated to the 2nd District Court of Appeal in March from San Fernando Superior Court. Deukmejian appointed her to a Municipal Court judgeship in 1986 and to the Superior Court in 1987.

Like Benke, Kennard was a deputy for Deukmejian when he was state attorney general.

She is known as a tough sentencer, with a passion for law and justice. Those who know her attribute some of that passion to a childhood under totalitarian rule in the Japanese-occupied Dutch East Indies during World War II. Later she felt the sting of racial discrimination from the Dutch because of her Eurasian ancestry.

She was forced to suspend her high school studies in Holland because of a life-threatening illness that resulted in the loss of a leg.

Kennard immigrated to the United States at the age of 20, took a job as a secretary and eventually obtained a degree from the USC Law School. “Considering the fact that I . . . never used a telephone or saw a television set until I was 14,” Kennard told an interviewer last year, “I think I’ve come a long way.”

She is married to a deputy Los Angeles County assessor.

Walter Croskey, 55, of Pacific Palisades was a lawyer in private practice in Los Angeles when Deukmejian made him a Los Angeles Superior Court judge in 1985. The governor named him to the 2nd District Court of Appeal in October, 1987.

The son of a librarian and a freight clerk for the Santa Fe Railroad, Croskey grew up in Los Angeles and specialized in commercial and business litigation as a private attorney.

While serving as a naval lieutenant in the Judge Advocate Corps, he specialized in criminal defense work, as well as court-martial cases and legal aid.

Croskey is known as a hard worker who controls his courtroom in an intelligent, restrained manner and sends jurors in his court a questionnaire after each trial, asking their opinions and reminding them that a person’s right to trial “may be the most precious individual right we, as free Americans, possess.”

He is married and the father of two daughters.

Fred Marler Jr., 56, of Sacramento is a former member of the state Senate who served from 1965-74. He was Senate Republican floor leader from 1972-74 and a colleague and friend of Deukmejian when he served in the Senate.

Then-Gov. Ronald Reagan appointed Marler to Sacramento County Superior Court in 1974. He was elected presiding judge of that court in 1980 and 1981.

In July, 1987, Deukmejian appointed him to the 3rd District Court of Appeal.

Marler, who was elected president of the California Judges Assn. in 1983, is a political conservative who refuses to label himself as such on the bench.

“I find that the law affects the judge much more than the judge affects the law on the trial court level,” he said in an interview.

Marler practiced law in Chico and Redding for five years before becoming the first Republican assemblyman elected from that area since the mid-1930s. He is married and the father of two sons.