State Courts Tilt to Right Under GOP Governors

TEN years ago, when California Supreme Court Justice Malcolm Lucas replaced former controversial Chief Justice Rose Bird in the aftermath of a judicial revolution, Mr. Lucas led the high court in a shift away from liberal activism to conservative law and order values.

Now, with Chief Justice Lucas retiring in May and another justice's departure last January, Gov. Pete Wilson (R) has the rare opportunity to appoint four justices to the seven-member state Supreme Court, and in doing so, create a judicial legacy that will last well into the next century.

The change here is emblematic of a quiet shift under way in some of the nation's most important state courts as a new class of Republican governors begins to exert influence.

Although only four states allow their governors sole authority to appoint high court justices, several states that were once bastions of judicial liberalism are tilting more to the right while governors in other states are vowing to do whatever they can to reshape the bench at all levels.

In New York, for instance, Gov. George Pataki (R) has promised to replace moderate and liberal justices appointed by former Gov. Mario Cuomo with judges willing to hand out the death penalty.

The first high-court appointment of Gov. William Weld (R) of Massachusetts, another death-penalty advocate, was former Reagan administration Solicitor General Charles Fried.

Texas, Alabama, and West Virginia have increasingly moved away from upholding personal injury claims, long considered a liberal position, and more in the direction of corporate interests.

Supporters of some of these appointments argue that Republicans are only naming judges that will be more inclined to interpret the law rather than make it. But critics - even some conservative scholars - see the judicial process becoming more politicized.

They point out that many GOP governors now in office campaigned on aggressive crime-stopping platforms popular with the public. The danger, as they see it, is that the state courts will reflect political sensibilities more than constitutional principles. ''In state after state, the ticket to [gubernatorial] election is identification with strong enforcement of the death penalty,'' says Gerald Uelman, a law professor at Santa Clara University in California.

During the late 1960s and the 1970s, a host of states began to reform their judicial-selection processes, hoping to insulate the court from politics. Only eight states, mostly in the South, now hold partisan elections for judges. Some 14 hold nonpartisan elections. Half the states use some variation of a ''merit selection'' process for the office of judge, in which a nonpartisan commission recommends a short list of names to the governor.

Rhode Island in 1994 was the most recent convert to the merit approach; Missouri adopted it in 1988. Yet even the merit process and the nonpartisan elections, where campaign positions are debated, are not shielded from voters' passions, experts say.

''You can be sure the New York commission is not going to give [Governor] Pataki a list of Democratic activists,'' says Sheldon Goldman, a judicial expert at the University of Massachusetts. ''The governor will go with the most conservative choice.''

In California, where the high court is composed of six Republicans and one lone Democratic hold-out, octogenarian Stanley Mosk, the 1978 death-penalty law is the defining issue for the court. The tribunal upholds 97 percent of the death sentences it reviews, the highest affirmation rate in the country and a complete turnaround from the Bird court. The record, where legal errors in the judicial review are regularly dismissed as ''harmless,'' has been sharply criticized by legal scholars inside and outside the state.

The court here is also unique for something called the ''90 day rule'': To speed up a clogged review process, justices can vote and draft opinions before they hear oral arguments and review the complete legal record.

''More than the US Supreme Court, California's high court has decided on a policy of conservatism and is sticking to it as an article of faith,'' says University of California, Berkeley, law professor Ephraim Margolin.

Yet Anthony Caso, director of litigation for Sacramento-based Pacific Legal Foundation, a conservative group, says that Wilson and former Gov. George Deukmejian have ''returned the state high court to its proper judicial role of saying what the law is rather than what it should be.''

Legal experts, in fact, mainly applaud the three high-court justices Wilson has selected since 1991, including his most recent choice of Ming Chin, the son of potato farmers and a former state appeals court judge. They hope the appointments will eventually raise the calibre of the court by allowing an ideological ''middle'' to emerge. Under Chief Justice Lucas, California gradually halted the previous court's expansion of civil rights and narrowed criminal defendants' rights. But Wilson's appointees also appear to support abortion rights and have ruled against insurance companies and prosecutors.

As in many states, Wilson is under pressure to select minorities and women. He appointed Kathryn Werdeger in 1994, Ming Chin in January, and, for the new opening, is considering Janice Rogers Brown, a black appeals court judge. Robert Bonner, a highly respected former federal judge, is also a front-runner. ''His appointments are all high quality people,'' says Joseph Grodin, a former California Supreme Court justice who was recalled along with Chief Justice Bird and fellow Justice Cruz Reynoso. ''Whether his appointments will have a long-range impact is difficult to predict. People have a way of doing things once they become judges that the people appointing them would not have predicted.''