Democrat Expected to Fill Mosk Seat

The death of California Supreme Court Justice Stanley Mosk leaves a gaping hole on the state high court that Gov. Gray Davis is expected to fill with a moderate, pro-death penalty Democrat.

Mosk, one of the most prolific writers of court opinions, died at his home here Tuesday afternoon at the age of 88 of heart disease. He had worked Monday but did not go to the court Tuesday because of a bronchial condition. He died in his bedroom, where he had gone to rest, court sources said Wednesday.

Legal analysts expect Davis’ first nominee to the state high court will be a judge who has a clear track record of written court opinions and favors abortion rights. Davis is likely to choose between members of the state Courts of Appeal and the federal district bench, analysts said, and will be particularly interested in putting a Latino on the court.

The governor’s office said Wednesday that Davis has no “pre-selected list” of candidates and will undertake a “comprehensive search . . . for the most qualified person possible.”

The loss of Mosk, the most liberal justice on the court and its only Democrat, will be a blow to the court’s productivity, scholars said. As in many past years, Mosk wrote more opinions in the 12 months ending March 31 than any of the six other justices.

“They lost a real workhorse and a very experienced workhorse,” said University of Santa Clara Law professor Gerald Uelmen.

Few expect Mosk’s successor to be as liberal as Mosk because Davis is more conservative on criminal justice issues, including the death penalty. Mosk, appointed to the high court in 1964 by Gov. Pat Brown, was the last of his generation of liberal state Democratic public officials.

His death “will probably mean some slight shift on the court to the center or to the right,” said UC Berkeley Law professor Stephen Barnett. “But it will be incremental.”

The mood at the court was solemn Wednesday. When the justices met privately for their weekly conference in the chambers of Chief Justice Ronald M. George, Mosk’s chair at the table was left in place, empty.

Mosk, as the justice with the most tenure on the court, was by tradition the first judge called upon to express a view on a case in conference. A day after Mosk’s death, George momentarily forgot that the dean of the high court was no longer there.

“Stanley?” George inadvertently asked, as he called out a case and turned to Mosk’s chair.

“He is already missed,” said conservative Justice Ming W. Chin. “It is a tremendous loss. Everyone has called Stanley a giant. He was more than that. He had such a wonderful presence about him, always a gentleman, never a cross word even though you disagreed on an issue. He never held a grudge. He moved on to the next case and worked diligently on it. He was just a real joy to work with.”

While Davis looks at judicial resumes, the state Supreme Court will be poring over its pending cases to determine how Mosk’s death will affect its decisions. The court will reassign cases Mosk was writing to other justices.

The votes on cases that have already been argued but not yet published are established by now. The court may have to postpone decisions that were being decided by a 4-3 vote, with Mosk in the majority.

In such a situation, the court would schedule another public hearing for arguments in the case after Mosk’s successor is appointed.

George said Wednesday that the court has heard arguments in 45 cases that were to be decided over the next few months. The remaining justices would be able to resolve cases that are tied 3 to 3, if one member is persuaded to change his or her mind.

“I want to emphasize that I don’t know if there are any such cases, and if they are, I think there would be very few where we couldn’t work things out and get four votes,” George said.

He said he hopes Davis will have Mosk’s successor in place by September, when arguments resume.

“I have already communicated my sentiments that it would be in the interests of everyone involved if that vacancy were filled by the time of the September calendar,” George said.

The chief justice also said he does not believe Mosk’s passing will “appreciably” affect the future productivity of the court. He noted the court will probably decide 109 cases this year, whereas the U.S. Supreme Court, which has two more justices, usually issues opinions only in about 70 cases.

George declined to predict how the loss of Mosk will affect the court’s decision-making. “Every single change on the court changes the group dynamics, in ways you can’t always predict and not necessarily by ideology,” he said.

Most legal analysts said they expect Davis to choose Mosk’s successor cautiously and with an eye to the next election. The governor has been generally slow in filling vacancies in the state’s courts.

“Davis makes Hamlet look quick in making up his mind,” said Golden Gate University Law School Dean Peter G. Keane. “He is so timid and so cautious that he might make the wrong move, particularly when it comes to the courts, that he takes forever.”

Davis, in making appellate appointments, generally has favored candidates with experience on the bench. But because the state was run by Republican governors for 16 years, there are relatively few Democratic justices on the Courts of Appeal. And of those, many are nearing retirement age.

“I would expect him to appoint a Democrat and someone who has a record of law and order, no red flags about the death penalty, and a centrist in terms of civil law,” said McGeorge School of Law professor J. Clark Kelso. “It will not be someone who is perceived as a champion for changing the law in one direction or another.”

Davis will shy away from any candidate who would generate controversy, Kelso predicted.

“You don’t want to take a chance in an appointment like this, particularly when you are filling a seat vacated by Mosk,” the law professor added. “This is a very important appointment, and you don’t want to take risks.”

Davis has long been haunted by the fallout over Gov. Jerry Brown’s appointment of Rose Bird as chief justice. Bird, a strong liberal who had no prior judicial experience, stirred furious protests from conservatives, who eventually ran a successful campaign to oust her from the court.

Davis, who was Brown’s chief of staff, will not make a similar appointment, legal analysts theorized.

“He is not going to appoint any giant to that position,” Keane said. “A giant is someone he would feel uncertain about because that would be a person who would go their own way. He would be afraid of the fallout later on if that person did something unpopular.”

Davis’ office said in a statement that the governor would prefer to appoint someone with prior judicial experience, “although it is not a prerequisite.”

Hilary McLean, a spokeswoman, said no timeline has been established for making the appointment.

“There really is no telling at this point,” she said. “He has taken the deliberative process very seriously when appointing individuals to the bench, and this appointment is of extreme importance to the people of California.”

She said Republicans would be considered as well as Democrats.

Sheldon Sloan, a Republican who helped former Gov. Pete Wilson choose judges and is a friend of Davis, rattled off possible candidates Davis might consider: state Court of Appeal justices J. Anthony Kline, Arthur Gilbert, Manuel Ramirez and Charles Vogel, and U.S. 9th Circuit judges Ferdinand Fernandez and Raymond C. Fisher. Another possible candidate who judges have speculated may be nominated to the state high court is Carlos Moreno, a federal district judge in Los Angeles.

(BEGIN TEXT OF INFOBOX / INFOGRAPHIC)

The Mosk Files: Significant Opinions of State Supreme Court Justice Stanley Mosk

1976: Bakke vs. Regents held unconstitutional an affirmative action program for admission to a public university based on quotas for minority students.

1978 People vs. Wheeler prohibited the prosecution from removing, by peremptory challenges, all the prospective jurors in a criminal trial who are members of one racial or ethnic group.

1979: Marriage of Carney held that handicapped people cannot be deprived of the custody of their children on the basis of stereotypes about their fitness as parents.

1980: City of Berkeley vs. Superior Court declared that the state holds title to all tidelands in trust for the people.

1980: Sindell vs. Abbott Laboratories held that when a plaintiff is unable to identify the particular manufacturer of the drug that injured him, he may jointly sue all the manufacturers of that drug on a theory of enterprise liability.

1982: People vs. Shirley held that police hypnosis of a prospective witness for the purpose of enhancing his memory contaminates the witness and makes his testimony inadmissible.

1999: Miller vs. Superior Court held that the constitutional right to due process in a criminal case does not trump a journalist’s immunity from contempt for refusing to give prosecutors unpublished material.

2001: Comedy III vs. Saderup held that an artist may be required to pay licensing fees to depict celebrities, in this case the Three Stooges, unless the art contains “significant creative elements.”

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Times staff writer Dan Morain contributed from Sacramento.