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Two Supreme Court justices were confirmed in January. The first, here in California, was unanimously confirmed following a hearing that took slightly over an hour. The two Democrats and one Republican sitting on the Commission on Judicial Appointments confirmed Justice Carol Corrigan, a Republican judge appointed by a Republican governor, to the California Supreme Court. The second, in Washington, was confirmed after a lengthy hearing characterized by political wrangling and posturing, followed by a closely divided vote, largely along party lines. As a result, our federal courts will become even more politicized, while our state courts are broadly viewed as non-partisan. A close look at how California governors have approached judicial nominations over the past 16 years reveals a centrist, non-political alternative that Washington would do well to emulate. It wasn’t always this way. Some date the current partisan gun slinging over judicial appointments to the failed nomination of Robert Bork in 1987. But it really started a year earlier, right here in California, with Gov. George Deukmejian’s campaign against California Chief Justice Rose Bird, and Justices Joseph Grodin and Cruz Reynoso. The governor’s public position was that the three had to go because they were unwilling to enforce the death penalty (though Grodin and Reynoso had voted to uphold some death sentences). But speaking to business leaders, he urged support for unseating the three justices by complaining that their pro-labor and civil rights decisions were “bad for business.” The sorry legacy of the governor’s campaign was a political divide over judicial selection. At the time, it looked unhealable. But it wasn’t. By examining how Govs. Pete Wilson, Gray Davis and Arnold Schwarzenegger defused the rancorous legacy of the Deukmejian era, we may find the road back from the precipice to which President Bush has taken us. Fortunately, Deukmejian’s politicization of judicial appointments was largely limited to the Supreme Court; his trial court appointments were generally well respected, though most were prosecutors and very few were criminal defense lawyers or plaintiff’s personal injury lawyers, let alone Democrats. Many of his appointees have risen to the appellate level because of the reputations they’ve earned in the trial courts. But in the wake of the Deukmejian era, many wondered if we could return to selecting Supreme Court justices based on their intellect, integrity and reputation for fairness and good judgment. The question resonates in Washington today, as each appellate appointment is a partisan call to arms. Pete Wilson began de-politicizing the process. Four of his five appointments to the high court in his eight years in office were generally viewed as centrists. (The exception was Janice Rogers Brown, now serving on the D.C. Circuit U.S. Court of Appeals.) Those four appointees weren’t wildly popular with either liberals or conservatives, but most California lawyers viewed them as well qualified and non-ideological. Davis appointed trial judges from both parties, with an emphasis on naming moderates respected by liberals and conservatives alike. His sole appointment to the California Supreme Court was Carlos Moreno, a former Los Angeles prosecutor who was first named to the trial bench by Deukmejian. With his first Supreme Court pick, Schwarzenegger avoided a partisan fight by appointing Corrigan, who, like Moreno, is a former prosecutor (and Deukmejian trial court appointee) with many years of judicial experience. And like Moreno, she too is viewed as a moderate, acceptable to Democrats and Republicans alike. Liberals weren’t thrilled when Davis nominated Moreno. They’d been hoping for someone further to the left. And conservatives were disappointed by Schwarzenegger’s nomination of Corrigan. They’d hoped for someone further to the right. But we’re all better off when our judiciary is dominated by well regarded centrists who enjoy broad political support. That’s why Corrigan won unanimous approval from the bipartisan Commission on Judicial Appointments, including a yes vote from Attorney General Bill Lockyer, a leading Democrat in the midst of a statewide campaign for treasurer. Is it too much to hope that California, where the current partisan fighting over judges got its start 20 years ago, will provide Washington with a lesson on terminating this political battle, and supporting a judiciary independent of partisan politics? Washington, are you listening? David B. Oppenheimer is a professor of law at Golden Gate University in San Francisco.

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