Reporters who got their first look at state Supreme Court Justice Marcus Kaufman giving a lawyer a verbal pounding during the court’s hearing on Proposition 103 had a common question.
Is he always like this?
The answer: No, not always. But often.
You usually don’t need a score card to identify Kaufman at the court’s oral arguments, or a microphone to hear him.
About once in each monthly set of hearings, a large man with heavy features will start asking questions in a booming voice. Each time the lawyer tries to answer, the voice will grow louder, the tone more exasperated, the questions more exclamatory.
Considered an Intellectual Conservative
That’s Kaufman, who spent 17 years on a state appeals court in San Bernardino and gained a reputation as an intellectual conservative before Gov. George Deukmejian appointed him to the Supreme Court in 1987.
It was widely predicted that Kaufman would lead the court to the right after the voters’ removal of Chief Justice Rose Elizabeth Bird and two liberal colleagues in the November, 1986, elections. It hasn’t quite turned out that way.
The court has moved to the right, but for the most part Chief Justice Malcolm Lucas has led the way, writing opinions for most major cases.
Kaufman has joined the majority most of the time, and was the author of an important 1987 decision upholding police roadblocks to look for drunk drivers. But he hasn’t been the leader of the conservative bloc, or even its most consistent member.
Last December, Kaufman wrote a dissent from a ruling by Lucas severely limiting damages in most suits by fired employees. He earlier dissented from a Lucas opinion that California antitrust laws could not be used against mergers. He also refused to vote to reconsider two important Bird court decisions, one continuing Medi-Cal abortions, the other requiring preliminary hearings for indicted defendants; conservatives remain two votes short of reopening both cases.
But in the court’s public sessions, Kaufman, 59, has lived up to his reputation. If not the leader, he has often been the dominant figure.
Television cameras caught a classic Kaufman performance in the Proposition 103 case March 7, when he hammered at a lawyer defending the insurance initiative, asking what evidence could justify a 20% rate rollback.
The court does not have to accept factual claims “just because someone said that certain things exist without any evidence whatever,” Kaufman said, his decibel level climbing steadily. “Tell me one thing in the record that shows it (the rollback) is necessary. . . . Read me the findings on (rate) excessiveness. . . . There’s not one finding. . . . It makes me very annoyed to have my question avoided.”
Looked Like a Partisan
Despite the attempts of attorney Karl Manheim to reply, it was apparent Kaufman wasn’t really asking questions. His pronouncements may have been aimed at the public, or at the swing votes on the court; whatever his intentions, he looked like a partisan trying to nail an opponent to the wall.
At other times, Kaufman seems to be on a rescue mission. When a lawyer whose side he appears to favor is having trouble with other justices’ questions, Kaufman is the court’s most frequent practitioner of the “softball” question, which typically begins, “Don’t you mean to say . . . ?”
Kaufman, described by one friend as a “redneck with a high IQ,” isn’t the only justice who uses questions to steer the argument his way. Justice Stanley Mosk, once he’s chosen sides, will typically ask a lawyer on the other side an innocent-sounding question to set up his own cutting reply.
But where Mosk uses a scalpel, Kaufman wields a sledgehammer.
In his first day on the court in April, 1987, Kaufman interrupted a defense lawyer asking the justices to uphold a key death penalty ruling, demanding to know how long the court had to enforce any past decision “if it’s incorrectly decided, incorrectly reasoned and incorrectly analyzed.” The court later reversed the previous ruling, with Kaufman in the majority.
In April, 1988, reporters described Kaufman as red-faced and angry as he berated a lawyer defending a judge’s order for county employees to register low-income voters, a case that is still pending.
“Who elected the trial judge in this case (as) the Board of Supervisors?” Kaufman asked, shouting. “The courts do not run the counties, they do not run the state.”
The lawyer in that case, Dennis Perluss, said afterward that he wasn’t bothered by Kaufman. “It was kind of fun . . . just like arguing with my father,” he said.
Others have not always reacted so calmly. It is not difficult to find lawyers who will describe Kaufman as an advocate in judge’s robes, though it is almost impossible to find a critic willing to be quoted by name.
An exception is the United Farm Workers, which burned its bridges with Kaufman long ago.
On the appeals court in 1980, Kaufman declared--in a voice described by several accounts as loud and angry--that the UFW and the state farm labor board had been in collusion.
The union tried to remove him from its cases; a state fact-finder found evidence of bias, but the state Supreme Court, in a precedent-setting ruling, said appellate judges must decide whether to remove themselves from cases. Kaufman stayed on the cases and ruled consistently against the UFW and the board, a pattern that has continued on the Supreme Court.
Kaufman’s actions in the dispute “fly in the face of notions of fairness and due process,” Dianna Lyons, the union’s chief appellate lawyer, said at the time of his nomination to the Supreme Court.
Kaufman has denied being biased. He has described himself as sometimes “overly argumentative,” telling an interviewer at the time of his Supreme Court appointment that he got “impatient with arguments that are so unreasonable, so ill-founded as to be an insult to the court’s intelligence.”
Kaufman has stopped giving interviews, a disappointment to reporters who found him livelier and more informative than most of his colleagues. But reporters who caught up with him at a conference recently got a few comments on Deukmejian’s nomination of Joyce Kennard to the Supreme Court, and one barb directed at himself.
As he headed for a panel where he would be sitting alongside lawyers, Kaufman smiled and remarked that he was glad to “get a chance to go somewhere I don’t have to yell.”