Stacking the Deck? an Empirical Analysis of Agreement Rates between Pro Tempore Justices and Chief Justices of California, 1977-2003*

Article excerpt

The chief justice of California is empowered to select a pro tempore justice when one or more of the court's regular justices are absent. Chief Justice Rose Bird was accused of using this power to manipulate case outcomes. Contemporary scholarly investigations came to mixed conclusions. Bird's successors have adopted the nondiscretionary method of alphabetical selection. The present study compares the agreement rates of temporary justices with Bird and with her two immediate successors, Malcolm Lucas and Ronald George. It finds evidence of vote bias for Bird, particularly in close cases and cases before April 1981. It does not find evidence of vote bias for Chief Justices Lucas or George, suggesting that a nondiscretionary selection procedure should be formally required.

All collegial courts inevitably experience temporary vacancies created by the absence of one or more of the courts' permanent members. Vacancies may be short, if caused by a conflict of interest in a particular case, or long, if caused by a justice's departure from the court. One way to deal with vacancies is to simply proceed without a full complement of justices, often risking the possibility of a tie vote. The United States Supreme Court does not use temporary justices, an approach emulated by thirteen American states. However, courts of last resort in thirty-seven states provide for the temporary appointment of lower-court judges in at least some of the cases that they decide (Brent, 2004).

State temporary lower-court judges are selected through a wide variety of methods. On one end of the spectrum are the states-a majority-that strive to keep the selection process apolitical and mechanical, usually by delegating the task to the clerk of the court, who selects appointees by a neutral procedure, for example, alphabetically. One of the most unusual-and most neutral-is Washington's practice of drawing names from a glass jar. On the other end of the spectrum are those systems that promote discretion, usually by giving either the chief justice or, less frequently, the governor, the power to make such appointments. Such systems seem to invite political considerations to enter and perhaps dominate the process.

One state with a discretionary system of selecting pro tempore justices is California. The California Supreme Court consists of seven justices. The California Constitution requires the concurrence of four justices to render a decision. Thus, when one or more of the regular justices is absent for any reason, a temporary justice is appointed (Art. VI, Sec. 2). The constitution also says, "The Chief Justice may provide for the assignment of any judge to another court but only with the judge's consent if the court is of lower jurisdiction" (Art. VI, Sec. 6). With this small exception, the chief justice's power to select is unlimited, and the chief justice is not required to follow any particular procedure or consult with anybody regarding the choice of a temporary justice.

The political context of the California Supreme Court makes it reasonable to believe that a chief could be tempted to use this power to achieve policy goals. The California Supreme Court has a largely discretionary docket. Many of the cases that it decides present the justices with sharp ideological and policy choices. Partially as a consequence, the court is prominent and visible and has experienced relatively high levels of conflict (Dolan, 2002; Egelko, 1998), which manifests itself in high levels of dissent. This last fact may particularly tempt the chief justice to stack the court with allies in cases in which they could affect the outcome.

Chief Justice Rose Bird was criticized for doing exactly that (Stolz, 1981). When Bird passed away in 1999, popular commentary (e.g., Fried, 1999; Meyerson, 1999) emphasized her opposition to the death penalty, which led the voters to turn her and two colleagues out of office in the retention election of November 1986. …