Lockyer Has ‘Concern’ on Possible High Court Pick

California Atty. Gen. Bill Lockyer, one of three members of a judicial confirmation panel, has expressed “concern” about the legal rulings of one of two candidates Gov. Arnold Schwarzenegger is considering for an open slot on the California Supreme Court, Lockyer’s spokesman said Thursday.

Nathan Barankin, the spokesman, said Lockyer had not made up his mind on whether to oppose 3rd District Court of Appeal Justice Vance Raye if the governor nominates him for the state’s highest court.

But “there are some [court] opinions that have given him concern,” Barankin said.

Among the legal decisions that trouble Lockyer was a ruling this year in which Raye joined two other appellate justices in deciding that Home Depot was not liable for creating a hostile work environment at two stores in the Sacramento area.

An African American former employee said white managers and employees at the stores hurled racial epithets and insults at black workers. The court panel, in Hollingsworth vs. Home Depot, said there was insufficient evidence to back up the claims.

Asked whether Lockyer has told Schwarzenegger of his concerns, Barankin said: “There have been conversations with representatives in the governor’s office about the vacancy. I won’t go any further than that.”

Barankin was responding to a report in The Recorder, a legal newspaper, about a meeting Lockyer had with Alameda County lawyers a few weeks ago in which he expressed strong reservations about Raye. Despite that meeting, Barankin said Thursday that Lockyer has “not taken a position on Vance Raye.”

Lockyer is one of three members of a commission that must vote to confirm the governor’s nominees for the appellate bench. The others are Chief Justice Ronald M. George, a moderate Republican, and Court of Appeal Justice Joan Dempsey Klein, a Democrat.

A lawyer who heard Lockyer speak at the Sept. 16 meeting of the Alameda County Democratic Lawyers Club said the attorney general told the group that he would strongly oppose Raye’s nomination and he sought suggestions for other potential candidates for the state high court.

“He was adamantly against Raye,” said the lawyer, who asked not to be identified, in an interview Thursday.

Raye declined to comment on the case that upset Lockyer but said he had voted the opposite way in a similar case -- Smith vs. Del Webb -- after concluding there was enough evidence of racial animus to justify a trial.

“You can’t look at the outcome [of the Home Depot case] and conclude that I am hostile to minorities because there have been other cases that have been different,” Raye said.

Schwarzenegger has asked a bar review panel to evaluate Raye and 1st District Court of Appeal Justice Carol Corrigan for a vacancy on the high court. The opening was created after President Bush won Senate approval to put former California Supreme Court Justice Janice Rogers Brown on a federal appeals court in Washington, D.C.

Raye and Brown are African American and are described by legal analysts as conservative. Corrigan is considered a moderate Republican.

Raye, 59, said Thursday he has made about 1,500 rulings on the bench and did not believe others should draw conclusions about him based on “just a small sampling.”

This year, Raye voted to uphold the state’s domestic partners law. The California Supreme Court let that ruling stand.

Raye previously served as legal affairs secretary to former Gov. George Deukmejian. Deukmejian appointed him to the Sacramento County Superior Court in 1989 and elevated him to the Court of Appeal in Sacramento in 1990.

Santa Clara University law professor Gerald Uelmen, an expert on the state high court, said some of Raye’s rulings “disturbed” him.

“You have to wonder whether this guy gets it,” Uelmen said.

But Justice Arthur Scotland, who serves on the Court of Appeal in Sacramento with Raye, described him as a “moderate.”

“Vance is a very thoughtful and compassionate person,” Scotland said. “Every honest and ethical judge, like Vance, has been involved in cases in which they might not like the result but reach the result because the law compels them to.”

The California Supreme Court has five Republicans and one Democrat. Brown was considered the most conservative justice on the court on civil matters but more moderate on criminal cases.

Corrigan would “have the effect of strengthening the center of the court,” said UC Berkeley emeritus law professor Stephen Barnett.

“Her opinions are moderate and show some style and individuality,” Barnett said.

Raye, Barnett added, “may be even more conservative than Brown” because Brown’s Libertarian views occasionally prompted her to rule for criminal defendants whom she believed had been treated unfairly in the criminal justice system.

Raye declined to label himself politically or to compare himself to Brown, a longtime friend.

“We share many views,” Raye said. “We disagree on many others.”

Asked which U.S. Supreme Court justice he particularly admired, Raye cited the late Justice Thurgood Marshall, who was a civil rights leader before he joined the court.

“He was a leader of the NAACP’s effort to end school segregation in the south and ... almost a legend in the black community,” Raye said.

Corrigan, 57, a former prosecutor, described herself as a “centrist.”

“I think I would probably be a centrist any place I found myself,” she said

Deukmejian appointed Corrigan to the Alameda County Municipal Court in 1987, and former Gov. Pete Wilson elevated her to the Superior Court and then the Court of Appeal.

Corrigan said she changed her voter registration from Democrat to Republican in the mid-1990s because “that seemed the most accurate designation” at the time.

“I haven’t changed,” she said. “I think the political environment may have changed, and it continues to evolve in this country.”

Asked which present or former U.S. Supreme Court justices she admires, Corrigan cited Justice Sandra Day O’Connor. “I think she is a centrist ... a real consensus builder,” Corrigan said.

A spokeswoman for Schwarzenegger declined to comment on Lockyer’s concerns about Raye.

“The governor is looking to appoint the most qualified individual to the court,” said Margita Thompson, the governor’s spokeswoman. “The opinion of the attorney general is important as he has a role in the confirmation process, but the governor will appoint the individual who in his view is best suited to serve on the court and will be best for California.”

Asked if Schwarzenegger would look at other candidates besides Raye and Corrigan, Thompson said, “He is leaving it open-ended right now.”