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Davis Demands Judges Reflect His Stances

Appointees: Governor would expect resignation of someone who failed to 'keep the faith' in rulings on key issues such as death penalty.


WASHINGTON — Gov. Gray Davis said Tuesday that he would expect judges he appoints who later break from him on key issues, such as becoming foes of the death penalty or advocates of same-sex marriages, to resign from the bench.

Davis, commenting at a breakfast with reporters in Washington, conceded that, given the separation of powers between the state's executive and judicial branches, he could not compel a judge to step down. Nor would he lobby a judge on an issue or a case, he said.

But Davis, who angered legislators last year by saying they should "implement my vision," added that those he has named to state government jobs should "keep the faith" with positions he has staked out. That attitude, he said, extends to judges.

"I feel very passionately about this," he said.

The governor's comments stunned some legal experts.

"That's outrageous," said professor Erwin Chemerinsky at USC law school.

"It is appalling. It is entirely wrong," Phillip Johnson, a UC Berkeley law professor, said. "In a way, I'm impressed he is so candid. But the substance of what he is saying should be looked [at] very critically."

As governor, Davis has broad authority to appoint judges to Superior Court. His nominees for state courts of appeal and the California Supreme Court must be approved by a commission, although a governor's choices are almost always affirmed.

While Davis so far has not had an opportunity to nominate a California Supreme Court justice, he has appointed 16 Superior Court judges and four appellate court justices. He has 61 vacancies to fill on state trial and appellate courts. California has 1,480 trial court judges, 93 appellate court judges, and seven high court justices.

Davis has been criticized by some legal analysts for making support of the death penalty a key test in his decisions on judicial appointments. Peter Keane, dean of the Golden Gate University Law School in San Francisco, said late last year that several potential candidates for the bench have been "absolutely traumatized" by Davis' focus on the death-penalty issue.

But in his remarks Tuesday, the governor left no doubt he is unapologetic about his approach. Davis said that if his judicial nominees changed their minds about supporting the death penalty after taking the bench, "I would expect them to resign" because they had "deceived me" in the interview process.

Government appointees--including judges--"should not be free agents," he said.

Michael Bustamante, the governor's spokesman, said later that Davis interviews potential judges extensively to avoid surprises once they are on the bench.

"There is a very elaborate process that is put in place that allows for judicial appointees to explain their points of view on various issues to the governor," Bustamante said. "If, after five-six-seven times an individual has made certain representations and then were to run counter to that representation in their rulings, they would be breaking trust with the governor."

Davis said he makes a point of sharing his positions with those he is considering for judicial appointments.

The subject arose when Davis was asked about Proposition 22, the initiative on Tuesday's ballot that would bar California from recognizing any kind of marriage except that between a man and a woman, including marriages performed in other states. Davis, in Washington to attend a meeting of the National Governors Assn., reiterated that although he opposes same-sex marriages, he opposes the initiative as needlessly divisive.

He commented on his expectations for judicial appointees when asked how he would react if a California court were to rule in favor of same-sex marriages. Davis responded that he would expect judges he has appointed to reflect his opposition to the performance of same-sex marriages in California.

Current state law defines marriage as being between a man and a woman, but also recognizes marriages performed elsewhere, even if they might not have been legal if performed in the state.

Davis made clear that his belief that appointees should adhere to his stances on major issues had been influenced by his experience as chief of staff for former Gov. Jerry Brown, who was known for indulging a wide latitude of opinions among those he named to office. Davis referred to this as the "let-a-thousand-flowers-bloom" school of governance.

"I've seen that movie," he said with a laugh, stressing that he had no desire to see it repeated in his administration.

The appointee who came to most symbolize Brown's style was Rose Bird, who was Brown's agriculture secretary with no judicial experience when he named her as chief justice of the state Supreme Court. Bird became controversial for her consistent decisions to overturn death sentences, and she and two colleagues were removed from office by voters in 1986.

Among the critics of Davis' Tuesday remarks was Hastings Law School professor Joseph Grodin, one of the three justices ousted along with Bird in 1986.

"I find it astonishing and disturbing," Grodin said. "It's one thing to say a candidate for judicial office should not lie about his views, if he is asked, and answers. But to say judicial appointees are somehow disloyal if they decide cases contrary to the governor's views is a truly radical position. I wonder whether he has thought it through."


Frederick reported from Washington, Morain from Sacramento.

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