State Courts Tilt to Right under GOP Governors

Article excerpt

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. …