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Only 43 days after California Supreme Court Justice Stanley Mosk’s death on June 19, 2001, then-Gov. Gray Davis floated the names of four possible successors. Even at that quick pace, new Justice Carlos Moreno wasn’t officially confirmed for the seat until Oct. 18 of that year, leaving the court short one permanent member for four months and costing Moreno attendance at two oral argument sessions. Moreno’s ascent to the court, however, now seems like it took place at light speed compared to the time it’s taking to replace Janice Rogers Brown. As of today, it has been 53 days since the state Supreme Court justice finally left for the D.C. Circuit U.S. Court of Appeals and 75 days since Congress confirmed her to that post on June 8. And Gov. Arnold Schwarzenegger has yet to tout a single person as a possible successor. At this rate, Chief Justice Ronald George speculated recently, a replacement for Brown � still needing to be vetted by the state’s Judicial Nominees Evaluation Commission and confirmed by the Commission on Judicial Appointments � might not sit for oral arguments until December, missing three sessions. And that’s only if Schwarzenegger gets things moving by nominating a candidate � one candidate � this week. Announcing a list of nominees and waiting weeks to choose a finalist would delay things even more. No less an authority than Armand Arabian, a justice on the state Supreme Court from 1990 to 1996, urged the governor last week to get on the ball. “More names ought to be floated rapidly because the business of the court is important,” he said. “They are going to be back on the bench in September, and this [succession] ought to start pretty quick.” In the meantime, pro tem justices, pulled from the state’s six appeal courts and assigned alphabetically by the Supreme Court clerk’s office to one case each, will fill in � all the while asking questions and casting votes that might not reflect the eventual successor’s judicial philosophies. “It certainly does complicate things, especially if you have the court closely divided, to have the outcome determined by someone who will not be a continued presence on the court,” Santa Clara University School of Law professor Gerald Uelmen said. “I think it leaves those decisions somewhat open to question � whether they’d be decided the same way with the full court.” Hastings College of the Law professor Joseph Grodin, who sat on the high court from 1982 to 1987, agreed that having pro tem jurists, rather than a permanent justice, casting votes isn’t the ideal situation � especially if the temps are put in a position of breaking ties. “It has precedent value like any other decision,” Grodin said. “But there’s always the possibility that the new justice, when he comes on board, and when it’s an important issue of constitutional law or a major statutory issue, may say, ‘I don’t agree with this.’ And if the decision hasn’t become final, and it’s a 4-3 decision, the new permanent justice may vote for rehearing.” The fill-in procedure has already caused a slight stir, with Richard Aldrich, a justice on Los Angeles’ Second District Court of Appeal voting with fellow Republicans George, Marvin Baxter and Ming Chin on Aug. 12 to keep controversial Proposition 77 on the November ballot. The measure, which would let legislative districts be drawn by a panel of three retired judges, was pushed by Schwarzenegger. George said Aldrich originally was approached about sitting as a pro tem for the court’s Sept. 13 oral arguments in San Francisco, but had a scheduling conflict. He was bumped to the waiting list, becoming available by chance for the Prop 77 issue. The pro tem justices now slated for September’s six arguments are Cynthia Aaron and Patricia Benke, of San Diego’s Fourth District; James Ardaiz, of Fresno’s Fifth District; Richard Aronson, of Santa Ana’s Fourth District; Judith Ashmann-Gerst, of the Second District; and Coleman Blease, of Sacramento’s Third District. Aaron, Aronson and Ashmann-Gerst were appointed to the appellate bench by Democrat Davis, Ardaiz by Republican Gov. Pete Wilson, Benke by Republican Gov. George Deukmejian and Blease by Democratic Gov. Jerry Brown. Second District Justice Laurie Zelon, a Davis appointee at the end of the alphabet, sat as a pro tem on June 1 in Los Angeles. George said he instituted the alphabetic assignment system upon taking over as chief justice in 1996. It requires that justices be on the appellate bench for at least a year. He said he wanted to avoid the appearance of political cherry-picking. “It’s totally above board that way,” George said. “And although I’ve been on the losing end of a couple of 4-3 decisions, the appearance of propriety is important.” In fact, Santa Clara’s Uelmen noted, one of the accusations against former Chief Justice Rose Bird in the 1986 retention elections that saw her, Grodin and Cruz Reynoso tossed off the court was that she “was manipulating the appointment of temporary justices to affect the outcome of cases.” George said he had expected Schwarzenegger to have thrown out some names by now, but, he added, “it’s obviously taking them longer than might have originally been indicated.” The reason he can imagine having no permanent justice for the court’s arguments until December is that candidates must be scrutinized by the State Bar’s Judicial Nominees Evaluation Commission, which has 90 days to decide whether one or more candidates is qualified. “But they often try to do it in 60 days,” George said, “and they would likely give priority to a Supreme Court appointment.” Even then, however, the final candidate has to go before the Commission on Judicial Appointments � George, Attorney General Bill Lockyer and the state’s senior appellate justice, currently the Second District’s Joan Klein � for a confirmation hearing. And that, George said, can take three to four weeks to pull together. The pro tem justices keep the court functioning, George said, but production is slower because Justice Brown’s former staffers aren’t producing draft opinions while awaiting the arrival of a new justice who may not retain their services. Nonetheless, that shouldn’t be a major problem, said Arabian, now a Van Nuys lawyer conducting mediation and arbitration. “The stability of the court is there. You are only down one person,” he said. “And you have extremely competent people to sit in. The business of the state goes on.” A majority on any issue can be forged with just four votes, Arabian noted. “As Justice Mosk used to say, ‘With four votes, you can do anything,’” he said. “That was one of our inside jokes.” Grodin said he had experienced the impact of vacancies on the court when Justice Frank Richardson left the bench in 1983 and Justice Otto Kaus departed in 1985. Any pro tem who had to break a tie, he said, faced a lot of pressure. “Because there’s no way to know if the new judge will agree with that result,” Grodin said, “so it created uncertainty. That’s not the end of the world, but it’s unfortunate.” Uelmen and Dennis Maio, one of the chief justice’s former research attorneys, questioned whether George would be inclined to put off sensitive cases until Schwarzenegger’s candidate is on the bench. “All things being equal,” said Maio, a partner in Reed Smith’s San Francisco office, “he’d want someone who’s going to be a permanent member of the court.” George, however, said that’s not the case. “We have not held off calendaring any controversial cases,” he said. “The cases that we set for the September calendar were ready, and there were no other cases ready to be set.” Boalt Hall School of Law professor Jesse Choper said the justices will simply “get done whatever they get done” and at the end of the day issue rulings with a pro tem justice’s concurrence or dissent. “You can say it’s not a real justice of the Supreme Court,” Choper said. “But it is on that day.”

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