No Opposition, Little Notice for 5 State Justices Up for Election

Buried in an avalanche of candidates and controversies is one of the best-kept secrets of the fall campaign: Five justices are on Tuesday’s ballot seeking retention or confirmation to the state Supreme Court.

The little-noticed list names Chief Justice Malcolm M. Lucas and Justices Edward A. Panelli, Joyce L. Kennard and Armand Arabian--as well as Appellate Justice Marvin R. Baxter of Fresno who, if approved, will succeed retiring Justice David N. Eagleson in January.

Voter approval of the five, as expected, would ensure that a conservative majority--all appointees of Gov. George Deukmejian--will continue to lead the seven-member court as it has since 1987.

The lack of drama in the current campaign stands in stark contrast to the 1986 general election, when Chief Justice Rose Elizabeth Bird and two other court liberals were defeated in an unprecedented voter rebellion.

Whereas in 1986 foes and friends of Bird spent more than $11 million on TV commercials, mailings and other campaign ammunition, this year’s candidates face no organized opposition--and have spent little more than $2,300 each on filing fees, plus a 25-cent postage stamp to mail their election papers.

Except for an occasional inquiry from an interested voter, no one’s calling them for campaign appearances, television shows or newspaper interviews to defend their judicial records.

Which is OK by the justices.

“I have not campaigned for one moment,” Arabian said last week. “My job is all-consuming here.” Said Kennard: “The last thing on my mind is the campaign. I’m trying to produce a work product to the very best of my ability. . . . If the voters throw me out, that’s fate. But I don’t want to get involved in any campaign.”

Panelli said he became convinced after his name first appeared on the ballot that it is impossible for a justice to run a campaign. “It’s not only very difficult to raise money but also very distasteful,” he said. “I just hope we’re back now where we were before, where unless there is some strong feeling about what the court has done, the people will confirm you.”

The lack of opposition and ultra low-key nature of the campaign come as little surprise to many court observers. Bird, an easily identifiable target for critics, and the court’s record on the death penalty have all but disappeared as political issues. And there is plenty else to consume the attention of the electorate.

“In a sea of commercials dreamed up by political experts and candidates, who’s got time to study the current Supreme Court justices?” asked Bernard E. Witkin, a noted legal author and court authority.

“There’s no political excitement and no reason for an adverse vote. There’s no one (on the ballot) who has a record that can identify him or her as having some extraordinary bias that is objectionable to any part of the electorate.”

In 1986, Bird and Justices Cruz Reynoso and Joseph R. Grodin were opposed by Deukmejian and other critics on the politically volatile issue of the death penalty. Under Bird, the court had upheld only four death sentences and reversed 64.

When the election dust settled, Deukmejian was able to recast the court with a conservative majority for the first time in decades. Since then, the high court has proved far more reluctant to overturn death sentences on grounds of procedural errors at trial. Under Lucas, the court has upheld 76 death sentences and reversed only 26.

There has been concern that the bitterly fought 1986 campaign had “politicized” the judiciary and that future elections would be marked by more divisive and expensive campaigning that could undermine judicial independence. Proposals to scrap the voter-approval system in favor of legislative confirmation and term limits for justices were made in Sacramento, but got nowhere.

The conspicuous absence of campaign activity this fall is lending support to skeptics who viewed the 1986 election as an aberration. Lucas, for one, continues to view it as analogous to “a 100-year flood,” an unusual set of circumstances unlikely to soon recur.

Others are not so sure--among them retired state Supreme Court Justice Otto M. Kaus, now a Los Angeles attorney. It was Kaus, a critic of judicial retention elections, who said that although judges should ignore election pressures, doing so was like trying to ignore “a crocodile in the bathtub.”

While heartened at the absence of partisan pressures in the current campaign, Kaus remains deeply concerned about future elections.

“Who knows what’s going to develop in the future if the justices on the ballot happen to do something that is newsworthy and gets people excited?” he said. “I haven’t changed my mind about this being a lousy system. This time it didn’t do any damage but that doesn’t prove much. . . . The situation that occurred four years ago could easily happen again. The crocodile is still in the bathtub.”

California adopted its system of retention elections--a simple “yes” or “no” vote--for state Supreme Court justices in 1934. But it was not until 1986 that a high court jurist was rejected by the voters.

Under the system, justices are nominated by the governor and must be confirmed by the state Judicial Appointments Commission before they can take the bench. After appointment, they also must go before the voters for confirmation at the next gubernatorial election and again for retention upon expiration of the term they are filling.

Lucas and Arabian will be seeking terms that end in January, 1999, Panelli and Baxter terms ending in 2003 and Kennard a term ending in 1995. The two justices, both liberals, who are not on this year’s ballot--Stanley Mosk and Allen E. Broussard--are serving terms ending in 1999 and 1995, respectively.

Lucas, 63, a former federal judge and the governor’s onetime law partner, was named to the state high court in 1984 and elevated to chief justice in 1987 after Bird’s defeat.

Panelli, 58, joined the court in 1985 after serving on the Superior Court and Court of Appeal in San Jose for 13 years. Kennard, 49, came on the court in 1989 after three years on the Municipal, Superior and Appeal courts in Los Angeles. Arabian, 55, joined the court last spring after serving 18 years on the Municipal, Superior and Appeal courts in Los Angeles.

Baxter, 50, was the governor’s appointments secretary for five years, helping Deukmejian select more than 600 members of the California judiciary. He was named to the Court of Appeal in 1988.