Judicial Hiring Freeze Lifts for Democrats

For 16 years, Democratic judges and lawyers in California have fretted that they had no state judicial ladder to climb. The judges appointed by former Gov. Edmund G. “Jerry” Brown Jr. largely languished in lower courts, without hope of promotion from the Republicans who governed the state.

Now, it is the Democrats’ turn.

With Gray Davis now in the governor’s office, judges who felt isolated and even looked down upon because of the man who appointed them are suddenly candidates for elevation. Democratic lawyers who longed futilely for the power and prestige of the black robe are once again eligible.

“People who have been frozen out, people who figured they never had a chance, now they are coming out of the hills,” said Golden Gate School of Law Dean Peter Keane.

Because of the pent-up demand, Davis is expected to be inundated with applicants for the bench. And he will have many opportunities to put his stamp on the nation’s largest judicial system, with more than 1,500 judges. The normal rate of turnover can be expected to open up as many as 100 slots in the next year. Moreover, the Legislature is likely to grant funds to create 50 judgeships, 40 of which have been approved but not funded.

But lawyers, judges, law professors and Davis supporters all say they doubt that the new governor will take the opportunity to appoint large numbers of liberal lawyers to the bench. Instead, they expect him to follow in the path of President Clinton by appointing middle-of-the road Democrats, at least in the first months of his administration when all eyes will be on him.

“Gray Davis is one of the most cautious characters who has ever lived,” Keane said. “He is a suspenders and belt man. He isn’t going to pick anybody who is going to end up in any kind of controversy.”

Another prominent lawyer who supported Davis predicted: “He is going to figure out where he can be liberal, maybe in the environment, and balance it by being conservative in the judiciary.”

On one key issue, the death penalty, San Francisco lawyer Jeremiah Hallisey, a member of Davis’ transition team, said he does not expect to see anyone appointed to the California Supreme Court who doubts the constitutionality of capital punishment. Neither will Davis appoint judges who want to be “crusaders” or carry “ideological baggage,” Hallisey said.

Michael Bustamante, a spokesman for Davis, said the governor will have no litmus test for judges. “But those he looks to appoint will certainly know his position on the importance of a woman’s right to choose and the need to enforce the death penalty,” he said.

Although plaintiff lawyers strongly supported Davis, analysts believe Davis will reward them by backing legislation favorable to plaintiffs rather than through wholesale appointments to the bench.

“Davis will take account of the political situation in a community and tap judges who can stand up to electoral challenges,” said San Francisco Public Defender Jeff Brown. “So in the heart of Orange County, he might find a Democrat who is acceptable to the Republican Party or who has such credentials that he is not likely to be challenged.”

The shadow looming over Davis’ appointments is that of former Chief Justice Rose Elizabeth Bird. Brown appointed her, then voters ousted her from the court after she consistently voted to overturn death sentences. During the campaign for governor, Davis’ critics repeatedly tried to tar him by reminding voters of Bird. Because of that, his first judicial appointments will be closely watched. And Davis’ aides say they expect their boss to watch the process carefully as well.

“There is one thing I guarantee you. I guarantee you Gray will have a hands-on approach on every single appointment because this is very important to him,” said Michael R. Yamaki, a Los Angeles lawyer who has been named a special assistant to the governor.

Yamaki, president of the Los Angeles Fire Commission, will advise former Los Angeles City Atty. and federal prosecutor Burt Pines, who has been named Davis’ judicial appointments secretary. The appointments of both men have drawn considerable praise from Republican and Democratic lawyers.

“A perfect [Davis judge] is a person who has both government experience and civil experience and nobody can identify whether they are a Democrat or a Republican,” Yamaki said. “As long as they can’t be labeled one way or another, that is the kind of person we are looking for.”

Former Gov. Pete Wilson put three jurists on the bench--one on the state Supreme Court--who were rated as unqualified by state bar evaluators. That will never happen with Davis, Yamaki said. “I don’t think anybody who gets [an unqualified rating] will be appointed.”

Davis may not have much immediate impact on the state’s highest court. The only justice on the California Supreme Court who is considered likely to retire in the near future is Stanley Mosk, who is also the only Democratic appointee. He was named by the late Gov. Edmund G. “Pat” Brown Sr. in 1964.

As for the Court of Appeal, Davis recently told Bay Area criminal defense lawyer Cristina Arguedas that he believes judges should rise through the ranks instead of going directly from law firms to the appellate courts.

“I’m a strong believer that people should go from the trial court to the Court of Appeal,” Davis said, according to Arguedas, who hosted a fund-raiser for his campaign.

Acting on that belief, however, could be difficult. Court of Appeal Justice J. Anthony Kline, who served with Davis in the Brown administration, said Davis may have a problem finding a lot of Democratic judges to elevate because so many are near retirement.

A few dozen Democratic judges still are young enough to want to remain in the judiciary and rise. Some Democrats have become Superior Court judges through election, and many Democrats serve as court commissioners hired by the judges. A few have been appointed by Republicans.

Among the jurists whose prospects for advancement are the subject of speculation among lawyers is San Francisco Superior Court Judge David Garcia, a former anti-poverty lawyer appointed by Jerry Brown to the Municipal Court and elevated by former Gov. George Deukmejian to the Superior Court.

Others named as possible Davis judges include Kamala Harris, a liberal African American San Francisco prosecutor, and Drucilla Ramey, a prominent feminist who worked to increase minority enrollment at UC Berkeley’s law school and who serves as executive director of the San Francisco Bar Assn.

“There are a lot of outstanding, extremely competent judges on the Municipal Court who, if we had not had 16 years of Republican governors, would clearly be on the Superior Court now,” said Los Angeles Superior Court Judge Judith Meisels Ashmann, a Democrat whom Jerry Brown appointed to the Municipal Court. “I think they have been frustrated.”

Ashmann, who moved to the Superior Court by election, is still young enough at age 54 to be considered for the Court of Appeal. Asked if she was interested, she said: “I might be.”

Davis appointees are expected to be more ethnically and professionally diverse than those appointed by Wilson and Deukmejian. Deukmejian named many prosecutors to the bench, and Wilson tried to broaden the judiciary by appointing more judges with civil law backgrounds.

Davis is likely to follow Wilson’s pattern but expand the pool with lawyers from more varied civil practices and appoint more racial minorities and gays.

As the Los Angeles city attorney, Pines appointed the first woman, the first African American and the first openly gay assistant city attorneys.

Chief Justice Ronald M. George, a Wilson appointee, said Davis telephoned him on the Sunday after the election, and the two men talked for an hour about the needs of the judiciary. George said he expects to have good relations with the Davis administration and believes Davis will make judicial appointments a top priority because they are often a governor’s biggest legacy.