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

Schwarzenegger must fill a state high court seat. His choices so far reflect party diversity.

July 06, 2005|Maura Dolan | Times Staff Writer

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.

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