In a surprise move, Gov. George Deukmejian on Saturday nominated Appellate Justice Joyce L. Kennard, an Asian-born immigrant who spent part of her childhood in a World War II internment camp, to the California Supreme Court.
If confirmed, Kennard, a 47-year-old former state prosecutor and now on the state Court of Appeal in Los Angeles, will succeed Justice John A. Arguelles, who retired March 1.
While there had been speculation that the governor would name a woman to the high court, most of the attention had focused on Appellate Justice Patricia D. Benke, 39, of San Diego, whom the governor had considered for previous openings on the court.
But Deukmejian, after conferring with Kennard on Monday, informed her of his choice Friday night and announced her appointment to the $103,469-a-year post on his regular Saturday radio program.
“Justice Kennard is superbly qualified and she has had a remarkable life of achievement and triumph over adversity,” the governor said. "(She) has proved that hard work, skill and intelligence, combined with the promise of the American dream, can lead one to great achievements.”
Kennard declined Saturday to make extensive comment before her confirmation hearing, but did say, “I consider it a great honor to be the governor’s nominee to the state Supreme Court. I expect now to be devoting all my efforts to completing my assignments on the Court of Appeal and preparing for the hearing.”
Kennard, a resident of Sherman Oaks, is a former trial court judge who was elevated to the Court of Appeal only a year ago and has been generally regarded as a judicial conservative during her relatively short time on the bench. Thus her move to the moderately conservative high court was seen as unlikely to result in a major philosophical realignment. Nonetheless, she stands to be the court’s youngest member and could wield considerable influence in a long-term career.
She would be only the second woman to serve on the state’s highest court. The first, Chief Justice Rose Elizabeth Bird, was defeated by the voters in the November, 1986, election along with Justices Cruz Reynoso and Joseph R. Grodin.
Informed sources said Saturday that while Benke had not officially taken herself out of the running, she had made it clear to the governor that if nominated, she would not be prepared to move from a new home in San Diego she shares with her husband and two children, ages 5 and 7.
Three court members currently live in Southern California and make weekly commutes to the court’s headquarters in San Francisco. None, however, has small children at home.
Benke expressed strong support Saturday for the governor’s selection of Kennard. “I can’t say that I’m not disappointed but I certainly can’t complain about the governor’s decision. Joyce is a wonderful, delightful person and she’s going to be an outstanding member of an outstanding court.”
Prepared to Move
Kennard, who is married but has no children, said that if confirmed she would relocate in San Francisco.
The new nominee was born in the Dutch East Indies, which is now Indonesia, and spent her childhood years on Japanese-occupied land during World War II. Her father, who was Dutch, died when she was an infant, and she and her mother spent time during the war in a camp in West Java run by mercenaries.
Later, Kennard and her mother were able to find money to secure passage to Holland, where Kennard’s studies at a private high school were interrupted for two years when she lost a leg from a life-threatening infection.
Kennard eventually became trained as a Dutch-English interpreter and, at 20, came to Los Angeles and found a job as a secretary. Seven years later, her mother died, and Kennard used the $5,000 her mother left her to enter Pasadena City College.
Then, after earning a scholarship, she transferred to USC, where she was graduated Phi Beta Kappa and later earned a law degree. She became a naturalized citizen in 1967.
Initial response to the nomination among legal authorities was favorable.
Justice Marcus M. Kaufman said he was “gratified” the governor made the appointment promptly to bring the court to its full seven-member strength.
“From all I’ve heard, she is very, very well-qualified and will be a welcome addition to the court,” Kaufman said. “She will also provide a welcome feminine perspective that will enrich the court.”
Gerald F. Uelmen, dean of the Santa Clara Law School and an authority on the state high court, predicted Kennard would be confirmed quickly in view of her “excellent” reputation as a jurist.
Uelmen noted, however, that Kennard had not served on the bench as long as previous Supreme Court appointees of the governor and thus had not established the same kind of judicial “track record” on which to base predictions of future performance.
“I think this appointment indicates the governor is willing to take a certain risk in order to achieve the objective of getting a woman on the court,” he said. “I don’t think the governor would take that kind of risk if this were a swing-vote appointment.”
Kennard still must be confirmed by the state Judicial Appointments Commission, which includes Chief Justice Malcolm M. Lucas, state Atty. Gen. John K. Van de Kamp and Appellate Justice Lester W. Roth of Los Angeles, the senior presiding justice of the state Court of Appeal.
It is expected that a hearing will be held by the commission in mid-April. If approved, Kennard could be sworn into office immediately. Meanwhile, Arguelles will continue to serve temporarily on the court, completing work on cases in which he has participated--including the widely watched constitutional test of Proposition 103, the insurance reform initiative.
Kennard, Benke and Appellate Justices H. Walter Croskey of Los Angeles and Fred W. Marler of Sacramento all had been under formal consideration by the governor for the post. In the last three months, the four potential nominees had undergone a confidential evaluation by a special commission of the State Bar. The commission’s report is non-binding on the governor, but if the governor selects a nominee the commission has found unqualified, that fact may be disclosed publicly.
Benke was one of six appellate justices considered by Deukmejian two years ago for the vacancies left by Bird, Reynoso and Grodin.
Kennard, after graduation from law school in 1974, joined the attorney general’s office in Los Angeles, working in the criminal division until 1979, when she took a post as a senior research attorney in the state Court of Appeal, handling both civil and criminal cases.
In 1986, Deukmejian appointed her to the Los Angeles Municipal Court and the next year named her to the San Fernando branch of the Los Angeles Superior Court.
In evaluations made in response to inquiries by the state attorney general’s office when Kennard was nominated to the appellate bench last year, lawyers familiar with her performance as a trial court judge described her as an able, forceful and prosecution-oriented jurist, skilled and knowledgeable in legal research. One lawyer noted that despite her background as a prosecutor, she appeared to be “very fair” to defense attorneys.
In March, 1987, Kennard, while still on the Superior Court, sentenced a Sylmar man to seven years in prison--just four months short of the maximum--for shooting at a car on the Golden State Freeway.
Although occupants of the car were uninjured, the crime represented a serious threat to public safety, the judge said.
“We are all aware of the thousands of commuters who drive the freeways every day . . . and we know all too well the frustration that can be experienced from an inconsiderate driver,” Kennard said. “But such conduct does not justify shooting. To tolerate such behavior would recall the days of lawlessness when it was the outlaw and his gun, not the law, that ruled.”
In a unanimous opinion by the Court of Appeal last July, Kennard rejected claims by a convicted burglar that his identification by the victim soon after the crime was unfairly suggestive because no other people were included in a police “show-up” or lineup.
“A single-person show-up is not necessarily unfair,” Kennard wrote for the court. “The potential unfairness in singling out a suspect is offset by the likelihood that a prompt identification shortly after the commission of a crime will be more accurate than a belated identification days or weeks later.”
In a widely noted case that is now before the state Supreme Court, Kennard joined in an appeal court decision in January rejecting a constitutional challenge to the display of a Jewish menorah during the holiday season at the Los Angeles City Hall.
The three-judge panel agreed that the display did not violate provisions of the state and U.S. Constitutions barring government establishment of religion.