Grodin Book Tells of Failed Bid for Governor’s Support

Chief Justice Malcolm M. Lucas privately urged Gov. George Deukmejian to endorse former Justice Joseph R. Grodin in the 1986 election that resulted in the defeat of three state Supreme Court members, Grodin says in a forthcoming book.

Lucas’ plea was to no avail, however, as the Republican governor later announced his opposition to Grodin and the two other liberal justices who were denied voter confirmation, Chief Justice Rose Elizabeth Bird and Justice Cruz Reynoso.

Deukmejian’s opposition was considered a pivotal factor in the election, particularly in the case of Grodin, who won a greater share of the vote (43%) than either Bird (34%) or Reynoso (40%).

Lucas, an associate justice at the time, was Deukmejian’s former law partner and his first appointment to the state high court. During the bitterly fought campaign, Lucas maintained a strict public silence, making no comment on the justices on the ballot.

But Grodin, now a professor at Hastings College of the Law here, says in his new book that Lucas told him he had urged the governor to back Grodin in the election.

At the time, Deukmejian had already indicated his opposition to Bird but had not taken a firm position on Grodin and Reynoso. The governor said then he intended to wait to see how the two decided future death penalty cases.

“(Lucas) told me that he had spoken personally with the governor and recommended that he endorse me,” Grodin says in the book, “In Pursuit of Justice: Reflections of a State Supreme Court Justice,” excerpts of which appear in the May issue of California Lawyer magazine.

“But in August, the governor announced his opposition to both of us, relying on the fact that Justice Reynoso had voted to affirm in only one death penalty case, and I in five, to conclude that we were not ‘objective’ in that area.”

Grodin denounces what he called the “scoreboard approach” used by the justices’ opponents to tabulate court votes on capital punishment, “typically without the slightest mention, much less criticism, of the reasons underlying our opinions.”

Deukmejian said in opposing the three justices that Grodin, like Bird and Reynoso, had “demonstrated a proclivity to substitute their judgment for the people’s, as expressed through the legislative process, the initiative process and the Constitution.”

Previously, Deukmejian, as attorney general and a member of the state Judicial Appointments Commission, had voted to approve the nomination of Grodin to the high court but had voted against Reynoso.

Won’t Speculate

In an interview Tuesday, Grodin said he had no further conversations with Lucas about the governor’s refusal to endorse Grodin. He also declined to speculate on the effect of Lucas’ public silence during the campaign, except to say that “I don’t think his endorsement would have turned the tide.”

Grodin did note that Justice Edward A. Panelli, another Deukmejian appointee who took no public position on the confirmation of the justices, introduced him with warm remarks at a luncheon during the campaign.

Justice Stanley Mosk, who like Lucas and Panelli were later confirmed by the voters, endorsed all his colleagues who were on the ballot.

Spokesmen for both Deukmejian and Lucas said Tuesday that they had no comment on the issue.

In the book, which will be published by the University of California Press, Grodin also expresses some sympathy for former federal Appeals Judge Robert Bork, who was denied confirmation to the U.S. Supreme Court in a fierce political battle in the Senate.

Grodin acknowledges that he was dubious about the legal theories advanced by the conservative Bork, but adds, “I felt sympathy for him because I knew what he must have been going through.”

“It is dreadful for a judge to find himself in the midst of a political maelstrom and to see his views exaggerated and mischaracterized by opponents, as Bork’s views clearly were at the time,” writes Grodin.

“When opponents sought to demonstrate his bias by subjecting his opinions to statistical analysis, instead of legal analysis, and when they put on television a simplistic and misleading advertisement in opposition to his confirmation, it reminded me of the 1986 California election.”

Grodin concedes that there is disagreement on the proper criteria for evaluating judges on the ballot but warns that electing jurists solely on whether voters agree with their rulings “poses a severe threat to the integrity of the judicial process.”

He says it may be possible that the 1986 election was a unique phenomenon, resulting from the combination “of an unpopular chief justice, appointed by a governor who became equally unpopular (Gov. Edmund G. Brown Jr.) and the public furor over the death penalty.”

But, pointing to politically charged judicial elections in such states as Texas and Oregon, he says he fears such campaigns will reoccur.

“California tends to be a trend-setter, and I suspect its reputation in that respect will endure,” Grodin writes.