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Swift Choice for Bird Seat Vowed : Experts Expect Court Changes to Be Gradual

November 06, 1986|PHILIP HAGER | Times Staff Writer

The California Supreme Court, for decades one of the most liberal and trend-setting courts in the nation, now is likely to shift toward moderation and conservatism as Gov. George Deukmejian names successors to the three justices defeated in Tuesday's election, legal experts said Wednesday.

The voters' historic rejection of the three jurists gives the governor, their most prominent critic, the opportunity to place a total of five appointees on the seven-member court.

There has been widespread speculation that Deukmejian will name Justice Malcolm M. Lucas, his former law partner and his first nominee to the court, to succeed Chief Justice Rose Elizabeth Bird. Lucas, a former federal district court judge, is regarded as the state court's most conservative member.

Panelli a Possibility

Justice Edward A. Panelli, a Deukmejian appointee viewed as a moderate, is seen as a candidate for chief justice should Lucas not receive or want the nomination. Panelli, Lucas and Justice Stanley Mosk, the court's senior member and an appointee of Gov. Edmund G. (Pat) Brown, all were confirmed by wide margins by the voters.

Observers note further that with the departure of Bird, the first woman to serve on the court, it might be politically advantageous for the governor to name another woman, such as U.S. District Judge Pamela Ann Rymer of Los Angeles.

Similar speculation has centered on state Appellate Justice John A. Arguelles of Los Angeles as a potential appointee to follow Reynoso, the court's first Latino justice.

In the aftermath of the election, there was wide agreement that the vote brought an end to an era in which the state's highest court has extended far-reaching protections to criminal defendants and has greatly expanded guarantees for individuals in consumer, civil rights and other actions.

In particular, a new court, dominated by Deukmejian nominees, is likely to affirm many more death sentences. The court reversed 58 of the 61 capital sentences it reviewed during the nine-year tenure of Bird, who was turned out of office by a 2-1 margin.

But experts, including both critics and supporters of the court, do not expect that what will be a more conservative court will abruptly overrule many of the major precedents long established in past decisions. More likely, they say, the new court will move gradually, narrowing the scope of past rulings and being much more cautious in its own decisions.

"I don't see any wholesale reversals of precedent," said Dean Gerald Uelman of the University of Santa Clara Law School, a backer of Bird and the other justices on the ballot. "Conservative judges, like those the governor is likely to appoint, have great respect for precedent--even liberal precedent. It's more likely they will nibble away at those rulings, rather than abruptly throw them out."

"There will be a definite realignment on the court," said John Findley, director of litigation for the Pacific Legal Foundation, a conservative public-interest law firm that often defends the rights of property owners. "We'll see the appointment of experienced judges who are 'strict constructionists' of the law . . . but strict constructionists are reluctant to overturn precedents."

Several experts suggested that the new court would be more willing to overturn recent precedents than long-established ones that have served as the basis for many decisions over the years. For example, the 11-year-old doctrine of "comparative negligence," under which plaintiffs who are partly to blame for their injuries can still sue for damages, will not likely be overturned, they said. But a new court might well reconsider the court's 3-year-old decision interpreting state civil rights law to bar landlords from discriminating against families with children.

Terms End Jan. 5

The transition process for the court will begin soon. Under law, Bird and Justices Cruz Reynoso and Joseph R. Grodin, the other two court members who were defeated at the polls, may serve out their current terms ending Jan. 5. Unless they resign or otherwise decline to participate, they can vote and write opinions until that time.

Meanwhile, the governor must send the names of prospective successors to the State Bar's Commission on Judicial Nominees Evaluation. After that commission has made a confidential review of the prospective nominees and reports its findings to the governor, Deukmejian then would send his choices to the state Judicial Appointments Commission.

The Appointments Commission, made up of the chief justice, the state attorney general and the senior presiding justice of the state Court of Appeal, would hold public hearings and then vote to confirm or refuse to confirm the nominees. No Supreme Court nominee has been rejected by the commission since 1940.

Awkward Position

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