Felix Frankfurter, She Is Not

Tuesday, May 3, 2011

Page 7

IN MY OPINION (Column)

Felix Frankfurter, She Is Not

By GERT K. HIRSCHBERG

(The writer is a retired trial lawyer, an American Board of Trial Advocates member since 1978 and a former professor of torts at five California law schools. He counts 4,000 of his former students among California’s lawyers and judges. He was presiding referee of the Disciplinary Board, later called the State Bar Court. He is a former member of the State Bar Board of Governors—1980 to 1983—and the Judicial Council of California.)

Our body builder turned movie star turned Governor has surpassed only himself in his midnight gubernatorial actions. In exercising his commutation and pardoning powers, he partially commuted a prison sentence of a good friend’s son who was convicted and served a prison sentence for a brutal and sadistic crime. The fact the good friend was a Speaker of the Assembly was of course immaterial. Historically, in numerous reported decisions, this Governor either reversed the Parole Board or was reversed by the courts since he, as Governor, found a danger of recidivism. This display of unchecked favoritism is a blight on the record of a likeable former Governor. Prior thereto, his skills as a tactful negotiator with members of the Legislature were hardly enhanced when he publicly referred to them as “girly boys”. But none of his deeds or misdeeds exceeded the damage he did upon the people of California with his appointment of the new Chief Justice.

Tani Cantil-Sakauye is a pleasant, likeable graduate from the UC Law School at Davis. The only trouble is that a Felix Frankfurter she is not. Arnold Schwarzenneger plucked her out of hundreds to become the next Chief Justice of California.

What is her history? College and law school at UC Davis; four years in the Sacramento District Attorney’s office; eight years in the Superior Court as a trial judge; five years in the Appellate Court. She had also served one year as legal affairs secretary for then Governor Deukmejian. Scholarly writings in books, appellate briefs, law review articles, none. Teaching in law schools, none.

Unless she has completely concealed it from public scrutiny, she has never managed an investment or a business, nor been involved in any personnel administration, public or private. Yet, she has been put in charge of a multi-billion dollar enterprise with real estate holdings in every town so large it would make Donald Trump look like a piper.

Just as California once has the first state university in the nation, so was our state renowned for what was once its finest Supreme Court. We featured a superb Supreme Court headed by Roger Traynor as chief, snatched from Bolt Hall’s faculty and ably assisted by great names such as Tobriner, Peters, Mosk and others. It was generally hailed as the greatest Supreme Court in the nation, rivaled only by the Cardozo-Andrews court of New York in the Palsgraf era. Roger Traynor himself had been called one of the greatest judges never to sit on the Supreme Court of the United States. In the area of products liability alone, our Supreme Court led the nation in chartering a blazing course to social justice.

Ron George, a Stanford graduate, as California’s Chief Justice ably carried the torch until the appointment of the new chief. As previously reported in this column, the Chief Justice is considerably more than just one of the seven decision makers. The Chief heads the Judicial Council and through the Administrative Office of the Courts, oversees 1,700 judges and 21,000 other employees. The Chief is the manager of the court system, its financial make-up, employee relations, real property management, court facilities problems, liaison with the Legislature and the Bar. The public never realizes this and only sees or hears the Supreme Court opinions authored by the Chief Justice. Californians were indeed lucky to have had the services of a Ron George, but he is retired and gone. It is time for a change.

The daunting task of this job description, it would seem, would require a realignment of these responsibilities. What we need is to fill two chairs - namely a manager’s chair and a judicial chair - just as many cities in California have managers and mayors. Perhaps one job would be akin to that of a head of General Electric Corporation and another as head of the judicial process. No, the managerial job would not be as complex as that of running a billion dollar corporation, but the magnitude does not affect its complexity. Such a division of responsibilities would indeed free a chief justice to the responsibilities which the public presently expects.

Conflicts and controversy between the Administrative Office of the Courts and the judges of California are brewing and coming to the surface. Last year, when the (former) Chief, through his power on the Judicial Council, decided to furlough all court personnel for one day per week and utilize court funds ear-marked for courthouse reconstruction, he drew not just the ire of many judges, but the formation of the Alliance of California Judges. Since then, more judges have expressed support of AB 1208 which apparently seeks more financial autonomy for trial courts. The Administrative Director of the Administrative Office of the Courts has resigned, although he denied that this was in response to demands by two legislators for his departure. A former and retired presiding judge has referred to the Administrative Office of the Courts as mismanaged and power hungry.

It is time the voters of California restore the judiciary to what it was intended to be, a tribunal for the solution of conflicts between individuals, or the state and individuals.

This contemplated change would, could and should persuade a governor or a future governor when exercising his or her appointive powers to seek more appropriate judicial candidates. The immediate past Governor has shown no judgment and was governed by no criteria. That’s no way to run a railroad.