It’s Not Politics as Usual With Gov.’s Judicial Picks

SAN FRANCISCO —  In the coming months, Gov. Arnold Schwarzenegger will have his first shot at filling a vacancy on the state Supreme Court, a choice that could give moderates a solid majority or continue the court’s longtime conservative tilt.

The influential seven-member panel has the final word on the vast majority of cases brought in California, including the emotional decision, expected soon, on whether same-sex marriage should be legal. His selection will replace Janice Rogers Brown, a conservative who left to join the federal bench.

But Schwarzenegger’s pick is not expected to generate the kind of controversy boiling over a replacement for U.S. Supreme Court Justice Sandra Day O’Connor, who announced her retirement last week. Unlike President Bush’s nominations, which have been predictably conservative, Schwarzenegger’s appointments to the lower courts have reflected diversity, both in political party and legal background.

Since his election almost two years ago, Schwarzenegger has appointed nearly as many Democrats as Republicans, and even placed on the bench several criminal-defense lawyers, a group largely ignored by several recent administrations.

Of 70 judges the Republican governor has appointed since he took office, 37 have been Republicans, 25 have been Democrats and eight have been Independents or have declined to state their party affiliation.

“In my recollection, we have never had as bipartisan [an] approach to judicial appointments,” said California Chief Justice Ronald M. George, a Republican.

Los Angeles County Superior Court Judge Alex Ricciardulli, who came from the county public defender’s office, said being a Democrat was a “nonissue” when Schwarzenegger’s administration considered him for the court.

“I had an application pending with [former Gov. Gray] Davis for six years, and nothing happened,” Ricciardulli said. “I put my application in with Gov. Schwarzenegger in June of 2004 and was appointed in March of 2005.”

San Diego County Superior Court Judge Francis M. Devaney, 50, who worked for 21 years in the San Diego city attorney’s office, said the whole process of his selection was “kind of mysterious.”

He said he went into his interview with Schwarzenegger’s judicial advisor, John Davies, having heard about “a litmus test” but mostly just gossiped with him about San Diego politics. Devaney grew up in a New York family of Democrats and describes himself as an Independent who votes for both parties.

“John just wanted to find out if I was a weirdo or a normal person,” Devaney said.

In style, Schwarzenegger’s appointments have resembled those of Davis: noncontroversial without strong ideological views. But some analysts caution that the governor’s lower-court appointments might not reflect the type of person he will name to the state Supreme Court.

“All bets are off when you are talking the Supreme Court, because that is the key court that sets the law for the state of California for years and years to come,” said Justice Joan Dempsey Klein of the state Court of Appeal in Los Angeles. “I am sure everybody who knows Schwarzenegger will be weighing in on that one.”

The vacancy on the state high court was created when Brown, one of its most conservative members, was named by Bush to a federal appeals court in Washington, D.C., and confirmed by the U.S. Senate. Brown left the court last week after nine years with the panel.

If Schwarzenegger follows the pattern he has set, he would fill the vacancy with someone of either party with moderate views who supports the death penalty and would enforce the three-strikes sentencing law.

With Brown gone, the state high court now has five Republicans and one Democrat. Justices Marvin R. Baxter and Ming W. Chin are considered the most conservative. Justices Joyce L. Kennard, Kathryn Mickle Werdegar and Carlos R. Moreno are seen as moderates, and Chief Justice George is often a swing vote.

The court is generally viewed as cautious, voting more conservatively on criminal issues and moderately on civil matters.

Legal experts anticipate that Schwarzenegger will consider African Americans to replace Brown, who was the only African American on the court. Among the potential candidates are state Court of Appeal Justice Vance W. Raye, a Republican and close friend of Brown who served as legal affairs secretary to former Gov. George Deukmejian.

Other African American judges mentioned by analysts are Candace Cooper, a liberal state Court of Appeal judge; U.S. District Judge Saundra B. Armstrong, a conservative appointed by former President George H. W. Bush; U.S. District Judge Consuelo Marshall, a liberal appointed by former President Carter; and U.S. District Judge Marty Jenkins, a moderate named by former President Clinton.

Schwarzenegger has not appointed as many women and minorities to the bench as did Davis, who was widely praised for transforming the complexion of the state judiciary. Of Schwarzenegger’s appointees, 27% are women, 2.9% are Latino, 1.4% are African American and 8.6% are Asian. Within the state bar, women make up 32% of the lawyers; Latinos, 3.7%; African Americans, 2.4%; and Asians, 6%. Of course, Schwarzenegger, if reelected, could have years, and possibly hundreds of appointments, yet to make.

Schwarzenegger’s state Supreme Court pick must be confirmed by the three-member Commission on Judicial Appointments, composed of the chief justice, the state attorney general and the senior presiding justice of the state Courts of Appeal.

Despite the political makeup of the current commission members -- Chief Justice George; Atty. Gen. Bill Lockyer, a Democrat; and Klein, who was appointed to the Court of Appeal by former Democratic Gov. Jerry Brown -- Schwarzenegger is not expected to run into confirmation trouble.

Lockyer gave Schwarzenegger “very good marks” for his appointments so far.

“I think there has been an effort to broaden the practice specialties, a conscious effort to be less partisan and less political about the process,” Lockyer said.

Davies, who was judicial appointments secretary to former Gov. Pete Wilson, and Peter Siggins, Schwarzenegger’s legal affairs secretary, have been largely responsible for helping select Schwarzenegger’s judicial appointments. A spokeswoman said both men declined to comment on the governor’s selections.

In interviews with members of the state bar and interest groups, Schwarzenegger’s appointees were given high to average marks.

Former prosecutors on the bench hugely outnumber former defense lawyers, who are generally considered among the more liberal members of the state bar. Schwarzenegger’s willingness to appoint half a dozen criminal-defense lawyers has been interpreted as a sign of confidence in his law-and-order reputation and a desire for a more diverse judiciary.

“The bottom line is that it is rare, and it was even rarer under the Davis administration, for people with criminal-defense backgrounds to be appointed to the bench,” said Ricciardulli, a Los Angeles County public defender for 17 years.

Ricciardulli refused to discuss whether the Schwarzenegger administration pressed him to give his personal views on legal issues before his appointment. He said he supports capital punishment and abortion rights. He has been a three-strikes critic, but opposed last November’s failed ballot measure to limit the effects of the tough sentencing law “because it went too far.”

“Even though I was a public defender, I had tremendous support from law enforcement,” he said.

Schwarzenegger has shown a tendency to promote from within the bench, naming court commissioners and referees as Superior Court judges. He also has appointed lawyers from diverse fields, from family law to insurance defense to law enforcement.

His appointments have included Craig J. Mitchell -- a former prosecutor -- and Martha Bellinger -- a former court commissioner, prosecutor and United Methodist minister -- to the Los Angeles County Superior Court. Both are Democrats.

Schwarzenegger also named Earl H. Mass III -- who specialized in medical malpractice defense -- to the San Diego County Superior Court, and Louis P. Etcheverry -- who had a general civil defense and family litigation practice -- to the Kern County Superior Court. Both are Republicans.

Schwarzenegger’s judicial appointments have won praise from the business community and trial lawyers, usually on opposite sides of court issues.

“I think they have been excellent so far,” said Allan Zaremberg, president and chief executive of the California Chamber of Commerce.

Sharon Arkin, president of Consumer Lawyers of California, a trial lawyers group, said her group also has been “pretty pleased” with the appointees.

“They are people we can work with who don’t seem to have any particular philosophical bent,” Arkin said. “They are good, neutral appointments.”

David LaBahn, executive director of the California District Attorneys Assn., agreed with the positive ratings and said the appointees have included “a good number of prosecutors.”

On the criminal-defense side, John Philipsborn, who leads a committee for the California Attorneys for Criminal Justice, a defense group, said the judges Schwarzenegger has appointed have largely been conventional and uninspiring, from either large law firms or government offices.

Despite the presence of some criminal-defense lawyers, most of the appointments have been “mainstream and predictable” and “largely of the same stripe we have seen over the past several administrations,” he said.