Davis’ Judge Picks Draw Wide Praise

Like his Republican predecessor, Gov. Gray Davis has favored prosecutors and high-powered corporate lawyers in his choices for judgeships.

But the Democratic governor has leavened his selections with personal injury lawyers, more women and minorities, and a smattering of criminal defense attorneys and legal advocates for the poor.

In appointing more than 230 judges since taking office, Davis has received grudging praise even from many of his critics on the left and right for his largely middle-of-the-road choices.

A spokesman for the Bill Simon Jr. campaign for governor complained that Davis’ selections are flawed because he won’t appoint Californians who oppose abortion. Davis’ judicial appointments secretary, Burt Pines, said candidates would not be excluded simply because they opposed abortion as long as they were pro-choice on the law.

Scholars and judges say Davis’ appointees are similar in outlook to the kinds of federal judges selected by a fellow Democrat, former President Clinton. But there is a difference, they add. Clinton had to win approval from a Republican-dominated Senate for his choices. Davis needs no legislative approval and has chosen uncontroversial mainstream Democrats anyway.

Statistics compiled by the San Francisco Daily Journal, a legal newspaper, show that as of July, 83% of Davis judges had experience in civil law and 60% had worked as prosecutors. Many had both backgrounds. Only 22% had ever been criminal defense lawyers, and even fewer, 6%, had worked in legal aid.

Davis refuses to name any lawyer who is not rated as qualified by state bar evaluators, and a greater percentage of his appointees than his predecessors’ have received the bar’s highest ratings. An opinion of unqualified by a local bar association also closes the door to an appointment, Pines said.

Justice Joan Dempsey Klein, presiding justice of a state Court of Appeal division in Los Angeles, described the Davis judges as perhaps “a tad more conservative” than the Clinton appointees.

“I would not classify any of the appointments I know of as ‘liberal’ in the sense that word is used in common vernacular,” Klein said.

Davis also has named a greater percentage of women and minorities than his Republican predecessors, and appointed five openly gay judges. Observing that 34% of Davis’ judicial appointments have been women, Klein said the National Assn. of Women Judges will soon pass a resolution commending the governor for promoting women.

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Appointments Praised

A prosecutors group and a conservative law-and-order nonprofit organization both praised Davis’ judicial appointments. They also noted that his staff always asks local prosecutors to comment on those he is considering for the bench.

“He hasn’t gone off to the dark side and appointed the wild-eyed libs,” said Ventura County Dist. Atty. Michael D. Bradbury. The Republican prosecutor described Davis’ judicial picks as excellent.

Nor has the governor shut out candidates with more liberal backgrounds, especially in such counties as San Francisco and Alameda that tend to support liberal Democrats.

“Initially when he was picking judges, candidates would be out of the picture entirely unless they jumped up and down with enthusiasm [for] the death penalty,” said Golden Gate Law School Dean Peter Keane, a former public defender in San Francisco. “The questions now being put to candidates are the realistic ones, like whether or not you would apply the law.”

To be sure, Davis hasn’t made everyone happy. Fresno County Dist. Atty. Edward W. Hunt said he fears that one of Davis’ appointees in Fresno might not give prosecutors a fair shake, “but by and large he has appointed judges who are pretty well-balanced.”

Sean Walsh, a spokesman for Simon, said abortion opponents should not be excluded from judgeships. “Gov. Davis is very proud of speaking of great freedoms and our democratic process, but he has litmus tests with regard to whom he is going to appoint as judges,” said the Simon campaign official.

Pines denied that Davis has a litmus test, but said, “Generally, the people who have been appointed have shared the governor’s views on women’s reproductive rights.

“Some may not have approved of abortion for themselves personally,” Pines added, “but were nevertheless pro-choice.”

Pines screens judicial candidates for Davis and recommends appointments. He said the governor will not put ideologues on the bench. Davis, he said, does “not want people to move the law to the right or the left or use the courts to solve social problems.”

The governor also wants them to share his views on everything from abortion rights to public safety. Candidates are asked not just about the death penalty but also about criminal sentencing, search and seizure law, and police practices. They also are grilled on legal precedents that affect business.

“I do not ask them how they would rule on a particular matter, nor do I instruct them how they should rule,” Pines said.

Davis also has been criticized for insisting that appellate judges have experience as trial jurists. The requirement has limited the pool of candidates because of the dearth of Democrats on Superior Courts.

As a result, Davis has elevated some trial judges who are in their 60s, a factor that could limit how long they serve. He also has rapidly promoted two of his trial bench appointees to the appellate level and elevated a few Republicans.

“He has raised the quality of the California courts by a notch,” said UC Berkeley law professor Steve Barnett. “But in my view, the appellate courts need some new blood that would be provided by practitioners, politicians, academics and the like.”

Consider the mix Davis has appointed: Longtime Los Angeles prosecutor Harvey Giss went to the Los Angeles Superior Court, yet so did former criminal defense and legal aid lawyer Fred J. Fujioka.

Also named to the Los Angeles bench was Luis A. Lavin, an openly gay Latino who previously had been an ethics commissioner for the city of Los Angeles and enforced civil rights laws for the U.S. Department of Justice.

In conservative Orange County, Davis appointed business litigator Cormac J. Carney to the Superior Court. The Bush administration just tapped Carney for the federal bench.

Because former Govs. George Deukmejian and Pete Wilson appointed so many prosecutors, the California bench was short on judges with extensive civil litigation or family law experience. Some presiding judges and many lawyers asked the Davis administration to address that need.

“It took him an awfully long time to get warmed up and get the appointments moving,” said University of Santa Clara law professor Gerald Uelmen, “but I think he has really succeeded in attracting a high caliber of civil litigators to the bench.... A lot of them are apolitical.”

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Recent Diversity Noted

Several lawyers said they sensed that Davis’ more recent appointments have been less conservative and more ethnically diverse than those he made earlier in his term.

“He is now appointing a more diverse bench, but the criticism is that he has waited until the 11th hour to do that,” said Jeff Adachi, San Francisco public defender-elect. “You have to ask, is this pandering to minority groups before an election or is this genuine commitment to diversity?”

Santa Clara County Dist. Atty. George Kennedy, a Republican, said Davis’ appointees have been worth the wait.

“He has gotten great diversity without having to dip down into people who have inadequate qualifications,” Kennedy said. “We have gotten really good people, not quick political picks ... [or] crazy like the Jerry Brown people.”

Bay Area criminal defense lawyer Christine Arguedas said the “pro-law enforcement” governor “isn’t going to let anyone get to his right when it comes to crime and punishment.”

“But within that mold, he has made some real quality appointments,” she said.

Davis’ most visible appointee is California Supreme Court Justice Carlos R. Moreno, a moderate Democrat and the first Latino on the state high court in 12 years.

The only Democrat on the court, Moreno sided with its more conservative members in a 4-3 January ruling that said police may search vehicles without a warrant if a driver fails to produce a license or registration. The justice whom Moreno replaced, the late Stanley Mosk, probably would have voted the other way and the majority would have ruled against the police.

“Maybe for some he is not liberal enough,” said Dennis Fischer, a criminal defense appellate lawyer, “but it is early.... There are times when I am not sure about Moreno’s philosophy, but when he dissents, his dissents are so well reasoned and so well written that I just think he holds great promise for the California Supreme Court.”

As the months have passed, Moreno has shown that he is not afraid to disagree with most of his colleagues or to stand alone.

He joined a dissent in which the high court upheld the death penalty in a case in which the condemned man’s attorney had failed to call a single witness in the sentencing portion of the trial. The defendant had suffered a tragic childhood and extreme racism in the South.

Moreno also wanted to go further than the rest of the court in a case holding that diseased smokers could sue tobacco companies in California for fraud and misrepresentation.

The majority limited the victory for plaintiffs by ruling that smokers could not present evidence of any industry misconduct that occurred during a 10-year period in which a state law provided cigarette makers with immunity in California.

Moreno opposed carving out that exception, which could imperil three huge jury awards that had already been won against the industry.