As flags flew at half staff on state buildings a day after California Supreme Court Justice Stanley Mosk died, speculation ran rampant Wednesday over who would succeed the state’s longest-serving justice.
The 88-year-old Mosk, the panel’s only Democrat, died unexpectedly Tuesday after complaining of chest pains the day before. His death has left a vacuum on the seven-member panel, where he served 37 years.
Aides to Democratic Gov. Gray Davis, who must appoint a successor, said the governor has neither picked a nominee nor set a timetable for filling the void.
“If he has, he’s keeping it to himself,” said Hilary McLean, Davis’ chief deputy press secretary.
Mosk had spoken with the governor about retiring, according to a source who spoke on condition of anonymity. McLean wouldn’t confirm that, or say whether Davis had begun considering a new appointee even before Mosk’s death.
“Whether they spoke or not about a potential retirement, he has not brought forth any names either privately or publicly,” McLean said.
She said any nominee would have to be evaluated by the State Bar before Davis makes a nomination. The nominee must be confirmed by Chief Justice Ronald M. George, an appellate court justice and Attorney General Bill Lockyer.
“Anybody who reports to know of any short list is in my view not well informed. I’m convinced the governor will be setting up a wide-ranging process for one or more candidates for review,” George said.
But the governor’s silence hasn’t stopped rampant speculation over who may replace a man George described as a “legal giant.”
Insiders and scholars suggested a hodgepodge of candidates that may emerge as leading contenders, including Los Angeles federal judge Carlos Moreno. He was appointed by President Clinton and would become the court’s only Hispanic.
Legal experts said Davis may sway to federal judges because the modern tradition of tapping state appellate court justices may be a tough sell. He has appointed just 10 appellate justices, and the bulk of the appeals bench includes those appointed by Republican governors during the past two decades.
“He doesn’t have a crop of recent young justices that he may elevate. It’s kind of anybody’s guess,” said Jay Eisen, a Sacramento appellate attorney.
Even so, on the appellate judge level, some experts pointed to Arthur Gilbert, a 2nd District Court of Appeal justice in Ventura who took the bench in 1982 upon Gov. Jerry Brown’s appointment.
“This is a very early moment to be asking these questions,” said Gilbert, declining to say whether he was interested in the post. “People are trying to get over the fact that we lost a giant in the law.”
Other Davis appeals court appointees mentioned as potential candidates include Los Angeles Justice Candace Cooper; Santa Ana Justice Kathleen Elizabeth O’Leary; San Francisco Justice Mark Simons, and Los Angeles Justice Kathryn Doi Todd. But those appeals court justices may not meet race considerations. Some say the governor wants a sitting judge who is a Hispanic Democrat and one who accepts Davis’ pro-death penalty position and other political views.
The high court runs the racial gamut, but has no Hispanic member.
“In the abstract we say race, gender and party affiliation should have nothing to do with that,” said San Francisco appellate Justice Carol A. Corrigan. “A contrary argument is that there is a value to have the court reflect the broader face of California.”
Stephen Barnett, a University of California at Berkeley law professor who closely follows the state Supreme Court, said he wants Davis to consider lawyers that are not judges.
“I think the governor should not limit himself to a sitting judge of the court of appeal,” he said.
A potential Hispanic candidate who is not a judge could be Vilma Martinez, a Los Angeles lawyer and former University of California regent, Barnett said. Assembly Speaker Robert Hertzberg, D-Van Nuys, said Martinez would be an “excellent choice” for the court.
Others discounted Martinez, saying Davis may not risk giving the job to someone without judicial experience.
Martinez, former head of the Mexican-American Legal Defense Fund, refused to say whether she was in the running.
“I would not like to comment on that,” she said.