Chief justice nominee avoids hot-button issues

Tani Cantil-Sakauye, the first nonwhite nominee for California chief justice, has performed a same-sex wedding, points to Sandra Day O’Connor as a source of inspiration and said she wanted to be a public defender before she became a prosecutor.

In her first interview since Gov. Arnold Schwarzenegger nominated her to head the state’s judiciary and the California Supreme Court, the Sacramento appellate court justice confided that she goes to bed at night worried into a “tizzy” about the myriad issues she will face but awakes each morning optimistic.

Tani Cantil-Sakauye: An article in Sunday’s Section A about Tani Cantil-Sakauye, Gov. Arnold Schwarzenegger’s nominee for California chief justice, noted that if confirmed she would become the second woman to serve as chief. In doing so, the article erred in describing the first female chief, Rose Elizabeth Bird, as having served from 1977 through 1984. Bird served through 1987. —

She tells herself: “I can do this!”

Cantil-Sakauye, 50, who has been a judge for nearly 20 years, is a moderate Republican who was largely unknown outside judicial circles when Schwarzenegger named her Wednesday to preside over one of the most influential state high courts in the nation and the administration of one the largest court systems in the world.

Funny and self-deprecating, she acknowledged during an hour-and-a-half interview in the governor’s office that she has much to learn, particularly on the administration of the death penalty. She shied away from discussing hot-button issues.

“I never presume I am the smartest one in the room,” she said.

She resolutely refused to state her position on same-sex marriage, saying only that she married a gay couple — “acquaintances” — during the six months in 2008 when such marriages were legal, and that she would follow precedent.

“I perform hundreds of weddings, and they included one same-sex marriage,” she said. She said she did not hesitate to marry the couple, whom she declined to describe, “because it was the law.”

She is expected to be easily confirmed by a three-member state commission and to be on the ballot in November.

If approved, she would become the first racial minority — she is Philippine American — and the second woman to serve as chief. Rose Elizabeth Bird served as chief justice from 1977 through 1984. Cantil-Sakauye’s presence would give the court a majority of female justices for the first time in history.

She said she never dreamed she would be a candidate for the job. When Chief Justice Ronald M. George, 70, announced he was retiring, she said, she turned to her husband and remarked that the angling for his job would be fun to watch.

“ ‘This is going to be good theater,’ ” she said she told him. “I was thinking, ‘Yay, I get to watch this. I know the players.’ ”

George, a centrist who analysts say will go down in history for creating a strong, independent judicial branch, is believed to have urged the governor to appoint Cantil-Sakauye. He had chosen her for the Judicial Council, the policy-making arm of the courts, and said he had leaned heavily on her to handle administrative chores and to brief legislators on the court’s computer system.

When asked how she felt about her name not appearing on any of the usual lists of candidates for chief justice composed by media and legal analysts, she shot upright and raised a hand: “I made one!” She said a blogger in Southern California floated her name as a contender.

She said she has “no opinion” about whether there is a need to reform California’s initiative process, which George has criticized for bloating the state Constitution.

Gays condemned the initiative process when voters amended the Constitution in 2008 and took away their right to marry, which a ruling by the state high court had given them six months earlier.

In general, Cantil-Sakauye said, the initiative process “serves a useful purpose.”

She said she had given little thought to the administration of the death penalty, which George has called “dysfunctional,” and was unaware of a widely publicized 2008 state commission report that suggested possible reforms. The report was sent to every judge in the state.

Among the criticisms of the state’s handling of the death penalty was that capital defendants stay on death row for decades and are far more likely to die of old age than as a result of the executioner’s needle.

Asked about the long delays between sentencing and execution, Cantil-Sakauye said: “That’s a subjective debate that we’re going to have about what’s too long, what’s right.”

“You know it’s sort of like Goldilocks’ porridge,” she continued. “Is this too hot, is this too cold? I don’t know, but I would like to hear what people have to say about it. I’d like to hear from the experts what they think is the appropriate time.

“And you know that’s quite frankly — well, some of it is budget-driven. I mean, are attorneys paid enough to look at these? What’s going on?”

As a Superior Court judge in Sacramento, she never presided over a death penalty trial, and capital case appeals in California go directly from trial courts to the Supreme Court.

She said her rulings during nearly five years as an appeals court judge showed common sense, and she listed several that gave her pride. Analysts who read them said they were fair and thorough, with little writing flair and no evidence of her personal views.

Gerald Uelmen, a Santa Clara University law professor, said they showed she was “open.” Told of her remarks on the death penalty and initiative process, he said it was “somewhat alarming” that she was not more conversant on the issues.

“There is going to be a steep learning curve,” he said. Uelmen was executive director of the commission that studied the death penalty.

One of the rulings she cited with pride overturned several counts in a criminal case. The other permitted a school district to lay off a teacher who had more seniority than some who were retained.

Vikram Amar, a UC Davis law professor, said her rulings show that her judicial skills are “more than competent,” that her thinking is clear and that she is willing to “rule in favor of the less popular party when she thinks the law so requires.

“Both opinions show an independent, indeed courageous, judicial mind,” he said.

Asked about regrets, Cantil-Sakauye recalled one “idiotic mistake” when she served on the Sacramento Superior Court and refused counsel to a defendant who kept threatening to kill his lawyers and battered one of them in her courtroom. She said the man could “turn like a rabid cougar.” The appeals court overturned her decision.

She said she became a Republican at age 19 when one of her friends headed the Young Republicans. “I like George Deukmejian,” said Cantil-Sakauye, who worked as his deputy legislative and legal secretary. “He was law and order. I appreciated that.”

She singled out O’Connor, a moderate Republican who became the first woman to serve on the U.S. Supreme Court, as a jurist she particularly admired, in part because she was a woman who faced hurdles in the legal world, persevered and “raised a family.” In law school, she and friends created a basketball team and called themselves the “Justice O” team, she said.

After law school, Cantil-Sakauye said, she applied for a job in the San Francisco public defender’s office but was told she was too “young-looking.” She then applied and was hired by the Sacramento district attorney’s office. Then she became a trial judge and ultimately moved to the appeals court.

Cantil-Sakauye lives in Sacramento with her husband — 49-year-old Mark Sakauye, a Sacramento police lieutenant — and two daughters, aged 14 and 11. She said she plans to rent an apartment in San Francisco, where the court and the judicial branch administrative office are situated, and work in Sacramento on Fridays.

With her husband retiring in September, the family may eventually move to San Francisco, she said.

Cantil-Sakauye said she knows she faces a “huge learning curve” and believes her colleagues on the court, some of whom were passed over for chief justice, will be supportive. She said the loves “the chaos” of too much work and believes she will master the job.

“I’m comfortable where I’ve been and I’m comfortable where I am,” she said. “And I’ve loved every step of it.”