Gov. Pete Wilson on Tuesday nominated Kathryn M. Werdegar, an old friend and a conservative state appellate judge, to fill a vacancy on the California Supreme Court.
Werdegar, 58, has only three years of judicial experience, serving as a Wilson appointee on the California Court of Appeal in San Francisco. But she worked for six years as a senior attorney for retired Justice Edward Panelli, whose seat she will take, and knows the workings of the high court well.
“I feel that I’ve been exposed perhaps to more appellate opinions and been more deeply involved with appellate opinions than perhaps many other justices,” she said at a news conference with Wilson on Tuesday.
The governor, who is up for reelection, had been under pressure to name a minority or a woman. His only other high court appointee, Ronald George, a white man, replaced Justice Allen Broussard, who is black.
If Werdegar is confirmed, the court will have two female justices for the first time. The other is Justice Joyce Kennard, who is part Indonesian and the only minority now on the court. The first woman appointed to the state high court was Rose Bird, who was ousted by voters in 1986 amid controversy over her liberal rulings.
Associates describe Werdegar as extremely bright and hard working, an independent conservative who often agonizes over her rulings and whose decisions cannot be easily predicted. She also is considered both a good researcher and a skilled writer, a combination that many judges lament is too often lacking on the appellate bench.
“She knows how to say no, even in the close quarters of a small appellate court where there is quite a bit of built-in pressure to go along,” said state Court of Appeal Justice Marc Poche, who also serves in San Francisco. “She is not the sort of person who is going to be pushed around by lawyers or judges or anyone else.”
The California Supreme Court is dominated by conservatives who tend to vote alike. They affirm more death penalty cases than any other state supreme court in the country and tend to favor insurance companies and other businesses in their civil rulings.
The Commission on Judicial Appointments is expected to confirm Werdegar within the next several weeks. She must ultimately be approved by voters on the statewide ballot in November.
Asked whether he thought Werdegar’s appointment would help him against Democratic front-runner Kathleen Brown, Wilson said: “I hope so. That’s not why I did it, but that certainly is a fringe benefit I would desire.”
Wilson and Werdegar have been friends since they were law students at UC Berkeley, and she has contributed a total of $3,500 to his campaigns over the years. Knowing her personally was comforting in making the nomination, Wilson said, but their friendship was not the determining factor.
“What is important is the nominee’s qualifications,” he said.
Werdegar does not espouse judicial activism.
“If I had to characterize my judicial philosophy,” she said, “I would say that I firmly believe in the concept of restraint. I believe it is the role of the courts to interpret the laws as written and to leave the Legislature the responsibility to create the laws.”
Werdegar, a third-generation San Franciscan, formerly served as associate dean and professor at the University of San Francisco School of Law and as a senior staff attorney in the Court of Appeal for about five years before her work for Panelli. Panelli liked her so much that he singled her out as a possible replacement when he announced his retirement in September.
She graduated first in her class from law school, became the first woman to be named editor of the law review at UC Berkeley and has written a book about criminal law procedure. On criminal matters, Werdegar has ruled for both prosecutors and defense attorneys.
“I am cautiously optimistic she will be a good justice for the prosecution,” said Edward W. Hunt, president of the California District Attorneys Assn. “I don’t have any reason to believe she will not be.”
The California Attorneys for Criminal Justice, an association of criminal defense attorneys, has not yet decided whether to take a position on her nomination.
But James Thomson, who is president of the group, said he fears Werdegar may follow in the footsteps of Panelli, who Thomson said cared too little about individuals’ constitutional rights.
Although Werdegar has ruled for the defense in some criminal cases, Thomson said those decisions were compelled by the law and would not even seem striking if it were not for the strongly conservative bent of California’s current crop of appellate judges.
“While we may be in a period of time where standing up for reasonable doubt instruction seems to be courageous, the history of California jurisprudence has always demanded that instruction,” the Sacramento defense attorney said.
Criminal defense attorney Dennis Riordan noted that Werdegar was the lead judge in a decision involving a murder case that infuriated the defense bar and prompted law school professors to write the court demanding reconsideration. Werdegar and her fellow panelists upheld a murder conviction even though the judge had failed to instruct the jury properly.
Faced with the uproar, Werdegar and the other judges reconsidered the case and reversed themselves. They held that the defendant should have a new trial.
“What that suggests to me is she is actually somebody who is affected by legal reasoning and is concerned about the state of the law,” Riordan said. “She does at some level try to work from the law to the result--as opposed to from the result backwards to the law. That is a refreshing change from the person she will succeed on the court.”
Most analysts said her lack of lengthy judicial experience will be overcome by her many years as a staff attorney on appellate courts. But one appellate judge, speaking on the condition of anonymity, said her lack of trial experience could be a drawback.
“Trial judges are down there looking at cases and making decisions very, very quickly,” said the source. “They don’t have time to back and research everything. I think missing that (experience) may be a detriment. . . . “
But the judge said Werdegar often asks questions to try to understand the experiences of trial judges. “So I think she has the right instincts,” the judge said.
Werdegar is soft-spoken, intense and at times shy, associates say.
“If you were sitting at a table with her and her husband and another couple,” said Court of Appeal Justice Poche, “and you didn’t know what her education was or what she did for a living . . . it would take some time to dig that out. She would not be like some lawyers or judges who have to right away establish their educational expertise and place in the hierarchy.”
Some analysts said Werdegar may follow the path of Justice Kennard, who was considered a conservative when former Gov. George Deukmejian appointed her but now often votes against the conservative majority.
“She is the kind of judge who will grow,” Poche said of Werdegar. “Maybe that means she goes to the left, maybe to the right. I don’t know. But I don’t have any doubt that she will be very independent.”
Justice Stanley Mosk, the only liberal on the high court, praised Werdegar as a “mature person who appears to be very thoughtful.” He said he has admired some of her opinions on the Court of Appeal.
Former Justice Panelli praised his protege. “She is an intelligent, hard-working, independent and fair-minded jurist,” he said.
But Gerald Uelmen, dean of the University of Santa Clara law school, lamented Wilson’s failure to appoint a minority.
“It certainly shows he is not as concerned as he should be about the issue of ethnic diversity,” Uelmen said.
Uelmen called Werdegar the most conservative of the finalists for the job, who included a Latino, an African American and a Chinese American.
“I think she will just fit in right where Panelli was, with a very low dissent rate,” Uelmen said.
Wilson also interviewed California Court of Appeal Justice Ming Chin, who was widely regarded as a favorite for the job. Chin, who serves on the same panel as Werdegar, praised her as “a real joy to work with--bright and industrious.”
Wilson predicted that Werdegar will become a leader on the court “because I think she has the collegial personality to develop consensus.
“She is a brilliant legal scholar,” he said. “She enjoys an extraordinary ability--a very rare one--to make complex subjects clear.”
Wilson had been criticized for taking so long to name a new justice. Panelli told Wilson in early September that he was going to retire and stepped down Jan. 31.
Uelmen called Werdegar’s confirmation by the Commission on Judicial Appointments a “foregone conclusion.”
“I would hope they would conduct (a hearing) just as quickly as possible,” he said. “I think she is badly needed in terms of the court keeping up with its caseload.”
Dolan reported from Los Angeles and Weintraub from Sacramento.
Profile: Kathryn Mickle Werdegar
* Born: April 5, 1936
* Residence: Ross.
* Education: Wellesley College, 1955; attended University of California, Berkeley, School of Law for two years, was first woman editor of the Boalt Hall law review; graduated from George Washington University School of Law, 1962.
* Career highlights: State appellate court justice, 1991-1994; senior staff attorney to California Supreme Court Justice Edward Panelli, 1985-1991; senior staff attorney, California 1st District Court of Appeal, 1981-1985; former associate dean, University of San Francisco School of Law.
* Interests: hiking.
* Family: Married to Dr. David Werdegar, director of the California Office of Statewide Health Planning and Development. Two sons, Maurice and Matthew.
* Quote: “If I had to characterize my judicial philosophy I would say that I firmly believe in the concept of restraint. I believe it is the role of the courts to interpret and apply the laws as written and to leave to the Legislature the responsibility to create the laws.”