Davis Should Seek a Star for Court

As Gov. Gray Davis looks to replace California Supreme Court Justice Stanley Mosk, who died June 19, the governor’s famous caution may lead him to do the safest thing: Promote a judge from the state Court of Appeal.

This “tried and true” approach may have special appeal because Davis was chief of staff to Gov. Jerry Brown in 1977 when Brown appointed the late Rose Elizabeth Bird, who had no prior judicial experience, as chief justice of California.

And Davis, in his nine appointments so far to the state Court of Appeal, has in every case promoted a trial judge.

This time, however, Davis should not do the safest thing.

The interests of California and its highest court will be best served if he appoints a legal star who is not a Court of Appeal judge, and even someone who is not a judge at all.

Why? Because the state Supreme Court is full of judges promoted from the Court of Appeal. The high court is too inbred.

Mosk was the only member who was not promoted from the Court of Appeal; he was state attorney general when named to the court.

There are good reasons for promoting judges from the ranks, but there’s also value in picking some outsiders with fresh perspectives and different experiences.

Much of Mosk’s success and value on the state high court might be traced to the political savvy he had developed, along with his experience in running a large government law office (and he’d been a trial judge as well).

Today’s state high court needs such worldly political know-how.

Although recent California governors, spooked by the memory of Bird, have hugged the skirts of judicial experience, other appellate courts reflect a range of legal backgrounds.

For example, on the U.S. 9th Circuit Court of Appeals, which covers California, the last 12 appointments included not only four federal trial judges but also five practicing lawyers, one U.S. Justice Department official and one law professor.

In Massachusetts, the current chief justice was counsel to Harvard University when appointed to the state’s high court.

New York’s chief justice was in private practice.

The high court justices of New Jersey, Colorado, Florida, Oregon and other states show greater mixes of legal experience than do the members of California’s high court.

Fresh winds from outside the judicial system are especially needed in California.

The California Supreme Court has become a closed, bureaucratic institution.

It has stopped using law clerks in favor of career “research attorneys” who stay with the court indefinitely, while justices come and go.

So the court is over-attached to its existing ways of doing things and prone to staff domination.

Unlike Mosk, none of the current state Supreme Court justices was a noted legal star before donning judicial robes.

The high court needs a new justice with legal clout, one who can take on the staff and question the way things are done.

As retired Justice Rudolph Kass of the Massachusetts Appeals Court has written, an appellate court needs some members “who have not been judges but rather have been in active practice, are familiar with the contemporary commercial world and are productively impatient with court traditions.”

The model for a Supreme Court appointee without judicial experience doesn’t have to be Rose Bird.

It could be Chief Justice Roger J. Traynor, who was a law professor before being appointed to the state Supreme Court in 1940. It could be Felix Frankfurter, Louis D. Brandeis, Hugo L. Black or former California Gov. Earl Warren.

All were stars in other fields before going on the U.S. Supreme Court.

Appointment to the California high court should be a plum that attracts the state’s best lawyers, whether from private practice, government, politics, academia or federal trial courts.

Davis should seek out such luminaries.

To meet the state high court’s urgent needs, the governor should look for a justice in the image of Stanley Mosk.