California Supreme Court Historical Society newsletter · fall/ winter 2018

Dodger Blue: How the California Supreme Court Saved Dodger Stadium How the California Supreme Court Saved Dodger Stadium And Helped Create Modern Los Angeles By Jerald Podair*

Dodger President Walter O’Malley (second from left) tosses baseball to attorney Harry Walsh after getting word that the California Supreme Court unanimously allowed construction of the stadium in Chavez Ravine. Looking on in front of a photo-sketch of the proposed stadium were Dodger general manager Buzzie Bavasi (left) and attorney Joe Crider, Jr. Photograph dated Jan. 14, 1959. Photos Courtesy L.A. Public Library, Herald Examiner Collection

Excerpted from CITY OF DREAMS: Dodger Stadium and the Field — a Dodger-owned minor league ballpark in South Birth of Modern Los Angeles by Jerald Podair. Copyright © 2017 Los Angeles — and the team’s promise to build a public by Princeton University Press. Reprinted by Permission. Reprinted by permission of Princeton University Press. recreation area on a portion of the Chavez Ravine land. It was one of the most momentous days in the history n early October 1957, the Los Angeles City Coun- of the city, and also one of the most contentious. Indeed, cil adopted Ordinance No. 110,204 — by the margin few questions have divided the people of Los Angeles Iof a single vote — bringing the Brooklyn Dodgers more deeply that those of whether, where, and how to and Major League Baseball to the West Coast. Under its build Dodger Stadium. Between 1957 and 1962, when it terms, the City of Los Angeles would contract to con- finally opened, the battle over the ballpark was an intense vey to the team some 300 acres in the Chavez Ravine and emotional one. It featured an attempt to void the sta- neighborhood overlooking downtown, on which the dium deal through a referendum that failed by a narrow new, privately-funded­ Dodger Stadium would be con- margin in June 1958. It included the controversial evic- structed. In exchange, the city would receive Wrigley tion by city authorities of a group of Mexican-American Chavez Ravine homeowners who had defied notices to vacate so that land for the stadium could be cleared. The * Jerald Podair is a professor of history and the Robert S. sight of sheriff’s deputies forcibly removing residents, French Professor of American Studies at Lawrence Univer- sity. His book City of Dreams: Dodger Stadium and the Birth broadcast live on television in May 1959, remains a source of Modern Los Angeles was awarded the 2018 Harold Sey- of contention for the Los Angeles Latino community to mour Medal by the Society for American Baseball Research this day. It also was the occasion for litigation that even- for the best book on the history of baseball and was a finalist tually reached the highest court in the state and which for the 2018 PEN/ESPN Award for Literary Sports Writing. helped determine the identity and direction of modern

2 fall/winter 201 · cschs newsletter Los Angeles. Few legal cases have been so fraught with ney’s office. Pierce Works, O’Melveny’s lead attorney, policy implications for the city. If Dodger Stadium was was a veteran litigator who was perhaps best known as built where team owner Walter O’Malley wished to — on UCLA’s varsity basketball coach in the 1920s and 1930s. the very lip of the downtown area — it would represent a Ruben and Silver were known as taxpayer advocates and conscious investment in the future of the central core, a champions of the little guy. The Dodgers could expect statement of Los Angeles’s intention to have a downtown no quarter from them. Ruben and Silver contended that worthy of its status as an emerging super city. But some the City Council had exceeded its powers by making Angelenos, including many who resided in peripheral what amounted to a gift of public property for the pri- areas such as the rapidly growing San Fernando Val- vate use of the team. They also posed the litigation’s cen- ley, did not share these aspirations. To them, the idea of tral question: did a privately-owned Dodger Stadium a baseball stadium to shore up a downtown they rarely serve a public purpose? A court had never addressed visited was a waste of taxpayer resources that could be this question. Now one would. more gainfully employed for roads and schools in their During a pretrial hearing, Ruben and Silver made a own communities. concession they would later regret. The relative values of Shortly after the ordinance was adopted and the Chavez Ravine and minor league Wrigley Field prop- announcing his team’s move from Brooklyn, Walter erties that were to be exchanged under the terms of the O’Malley flew west with team officials, landing in Los Dodger Stadium deal were the subject of controversy. Angeles on an evening in mid October 1957. Immedi- Contract opponents claimed that the Ravine land was ately after disembarking, O’Malley was served with actually worth much more than the city’s official valua- process in a lawsuit filed by a city taxpayer to void the tion of $2,289,204 and Wrigley much less than its assigned Dodger Stadium contract. Fewer than five minutes into $2,250,000.3 A judicial finding of inadequate valuation his time in Los Angeles O’Malley was already a defen- could void the agreement. But Ruben and Silver effectively dant in a legal action. stipulated that property values would not be made an The taxpayer suit had been filed by local attorney issue in the upcoming trial and the parties would litigate Julius Ruben in Los Angeles County Superior Court.1 It only questions of law, and not of fact.4 This would preclude argued that a public entity had no right to dispose of pub- the admission of evidence relating to appraisals of the two lic property for anything other than a “public purpose,” properties. The attorneys’ reasons for limiting the issues relying on the language in a 1955 deed of Chavez Ravine are unclear. Perhaps they were confident enough on ques- land from the Housing Authority of the City of Los tions of law that they were willing to concede the compli- Angeles (CHA) to the city of Los Angeles. This land had cated property argument in the interests of a clean case. In been the site of a planned public housing project in the any event, the question of whether the city had given up a early 1950s that had been cancelled, but not before most lot for a little in the Dodger deal was, as far as the litigation of its largely Mexican-American residents were removed was concerned, off the table. through eminent domain proceedings. The CHA trans- The trial began in Los Angeles County Superior ferred the land to the city with a deed stipulating that it be Court in mid June 1958 with a touch of farce. Silver employed solely for a “public purpose,” without defining called Los Angeles Mayor Norris Poulson as a witness what those words meant. Ruben contended that the deed intending to examine him on his attempt to induce the barred use of the land for the benefit of any private busi- CHA to eliminate the “public purpose” clause from the ness, including a baseball team. The city had promised 1955 Chavez Ravine deed. But the mayor was able to either to remove the public purpose restriction from the answer only one question in his two hours on the stand, deed or have it held harmless and of no effect, but Ruben as city lawyers lodged objection after objection to Sil- maintained this would be illegal. ver’s meandering and argumentative line of inquiry.5 In April 1958, another taxpayer lawsuit was filed The city and the Dodgers opened their case in support against the Chavez Ravine agreement in Los Angeles of the contract three days later. Judge Arnold Praeger’s County Superior Court,2 this one on behalf of Louis remarks from the bench did not bode well for the con- Kirsh­baum, who was represented by Phill Silver, a noto- tract’s future. He indicated his dissatisfaction with the rious local gadfly attorney. It objected to the allegedly city’s argument that the fact that the Dodgers would derive unequal exchange of Wrigley Field for the allegedly more substantial benefit from the contract was irrelevant to the valuable Chavez Ravine property. The Ruben and Kirsh- public purpose question.6 Ruben zeroed in on the Dodg- baum cases were consolidated and set for a bench trial. ers as a profit-making entity: “The question is whether Despite their small-scale legal practices, Julius the contract is a gift of public property under the law. The Ruben, who was representing himself, and Phill Sil- whole question hinges on whether the ball club is a private ver, representing Louis Kirshbaum, were formidable or public purpose.”7 The trial ended on its fifth day. adversaries for the Dodgers, who were represented by In mid July Judge Praeger, in a sweeping decision, held O’Melveny & Myers and supported by the City Attor- the Dodger contract invalid. His opinion was effectively cschs newsletter · fall/winter 201 3 Once the writ of prohibition was filed in the Supreme Court, that Court had the opportunity to rule not only on the procedural question but also on the merits of the underlying action itself. Silver’s strategic error, along with his and Ruben’s stipulation excluding property value evi- dence at trial, would bear heavily on the fate of the legal challenges to the construction of Dodger Stadium. They would also illustrate that in law as in life, procedure mat- ters as much as substance, sometimes more so. Judge Praeger had facilitated the writ-of-prohibition maneuver himself, albeit perhaps unintentionally, when shortly after his ruling he enjoined certification of the ref- erendum results until Silver’s suit to invalidate them could be heard.13 This made an application for a writ of prohi- bition the next logical step. In mid October the Supreme Aerial view of Dodger Stadium under construction, Jan. 3, 1962. The new home of the Dodgers, which opened April Court issued an order temporarily halting the referendum 10, 1962, included 49,000 seats in the grandstands and an decertification and scheduling a hearing on the applica- additional 7,000 seats in the centerfield pavilion area. tion for a writ of prohibition.14 Chief Justice Phil Gibson’s order for the Court intimated that the Court favored taking an endorsement of the arguments Ruben and Silver had up the entire case along with the writ of prohibition ques- made at trial. Praeger ruled that a privately owned sta- tion, in light of the fact that Judge Praeger’s decision had dium did not fulfill a public purpose and that the deed not decided questions of fact. The Court asked Silver to conveying the Chavez Ravine property to the city could submit a brief addressing the factual issues that remained not be altered to benefit the Dodgers.8 “There is noth- in the case. When Silver was unable to do so to the Court’s ing in the City Charter,” wrote Praeger, “that in any wise satisfaction, the stage was set for a full adjudication.15 The indicates that [it can] use public funds for the purchase of Dodgers now had a second chance in the court system. property for the purpose of selling it to a private person or The team’s lawyers challenged Judge Praeger’s deci- private corporation for the operation of a private business sion head-on. The centerpiece of O’Melveny & Myers’ for private profit.”9 The judge saw no difference between argument was one the Dodgers had been making in one purchasing land for a revenue-generating baseball team form or another for a decade: a privately constructed and “acquir[ing] property for the purpose of selling it for baseball stadium built on land acquired from a munici- use for a private bowling alley, a private golf course, a steel pality or state agency could fulfill a public purpose.16 The mill, a hotel, or any other private purpose.”10 Praeger con- proper way to analyze the contract, they maintained, was cluded “this is an illegal delegation of the duty of the City through “the various benefits to be derived by the City Council, an abdication of its public trust, and a manifest from the transaction as a whole,” and not solely on the gross abuse of discretion.”11 basis of how much money the Dodgers would make.17 Contract opponents were ecstatic. Ruben praised The Los Angeles City Council had determined that Praeger as “an able and conscientious judge” who had it no longer needed the Chavez Ravine land and that ruled correctly “that public money and public property increasing its property tax value with a stadium would should be used for the benefit of the public and not for the aid municipal finances, as would the sales and income tax benefit of a private corporation.”12 But Dodger attorneys revenues the new ballpark would generate. The council were already planning legal strategies aimed at secur- had also decided that it would benefit the city if the Dodg- ing a reversal by a higher court. The Dodgers’ chances ers built the stadium at their own expense, as opposed of overturning Praeger were also enhanced by a legal to incurring substantial cost and debt on a public struc- blunder committed by the overeager Silver, who in typi- ture. A public recreation area at Chavez Ravine, such as cally aggressive fashion had sued to prevent official certi- the one the Dodgers had agreed to construct, was also in fication of the results of the referendum on the stadium the city’s interest as a means of combating juvenile delin- contract’s validity that the Dodgers had won narrowly quency.18 The Dodgers-owned minor league ballpark, in June 1958, arguing that they had been superseded by Wrigley Field, which the city would acquire as part of the Judge Praeger’s July decision. Silver’s action prompted the bargain with the Dodgers, would provide additional pub- Dodgers and the city to employ a legal maneuver, by seek- lic benefit in this regard.19 The presence of major league ing a writ of prohibition, thus bypassing the intermedi- baseball in Los Angeles, which the new stadium would ate California Court of Appeal and instead proceeding ensure, would increase the number of jobs in the city. directly to the California Supreme Court — substantially Taken in aggregate, the Dodgers’ lawyers argued, there shortening a time-consuming process. were clear, “overall benefits to the City” in the stadium

4 fall/winter 201 · cschs newsletter contract and a manifest “public purpose.”20 The Dodgers’ drawn O’Malley to Los Angeles in the first place. It was attorneys had thus employed the application for a writ true, of course, that the issue of the relative worth of of prohibition as a means of obtaining an expedited and the properties exchanged in the Dodger contract had definitive ruling on the substance of Praeger’s decision been stipulated out of the case and Gibson thus did from the state’s highest court. not need to rule on it. But the Court’s approach to the Their approach worked. In January 1959 the California public purpose issue was certainly more encouraging to Supreme Court filed City of Los Angeles v. Superior Court, private enterprise than the more limited view taken in granting the writ of prohibition in a unanimous decision New York. It was as if the burden of proof had shifted. and allowing the Dodger Stadium contract referendum Under New York law, O’Malley had been forced to show result to be officially certified. More important, as the that his benefits would not substantially outweigh those Dodgers had hoped, it ruled on the validity of the con- of the city in any stadium deal. The fact that he would tract itself. The Court upheld the City Council ordinance profit significantly was enough by itself to tip the scales on which the agreement was based, and overturned Judge against a finding that a public purpose existed. Praeger’s decision blocking its enforcement.21 O’Malley’s burden was considerably lighter in Los Just as Praeger’s ruling had adopted most of Ruben and Angeles. To Chief Justice Gibson and his fellow jurists, it Silver’s contentions, Chief Justice Phil B. Gibson, writing did not matter that O’Malley stood to make a great deal of for the Court, embraced the arguments of the Dodgers money on the stadium deal. As long as he could show that and the city to support his rea- the City of Los Angeles would receive something tangible soning. After a decade’s worth of in return for Chavez Ravine, in this instance the local legal and policy debate over the Wrigley Field and the public recreation area, a finding question of whether a privately of public purpose was still appropriate. Under this more constructed baseball stadium generous legal standard, entrepreneurs like O’Malley fulfilled a public purpose, Gib- could count on assistance from government and greater son weighed in. “In considering freedom of action generally in achieving their goals. Gib- whether the contract made by son’s decision reflected a policy approach in which the the city has a proper purpose,” state’s role was to facilitate enterprise wherever possible he wrote, “we must view the con- and regulate only when necessary, and in which public- tract as a whole, and the fact that private collaborations such as the Chavez Ravine contract some of the provisions may be of Chief Justice were viewed not as giveaways but as economic stimuli benefit only to the baseball club Phil B. Gibson beneficial to the entire region. In New York, a privately- is immaterial, provided the city owned Dodger Stadium was not considered a public receives benefits which serve legitimate public purposes.”22 purpose. In Los Angeles, in the opinion of Chief Justice Gibson found these public purposes in the transfer of the Gibson, it was. O’Malley’s vision had carried the day. Wrigley Field property to the city and the promise to con- In addition, the effort by the city to obtain the removal struct the recreation area at Chavez Ravine.23 With those of the public purpose clause from the 1955 CHA deed of established to his satisfaction, Gibson did not find it nec- the Ravine property, which had so exercised Phill Sil- essary to reach the issue of indirect public benefits such as ver during the underlying trial before Judge Praeger, tax revenue, job creation, and positive publicity.24 was held to be legal and proper, as was the city’s plan to Through this holding, the Supreme Court ensured indemnify the CHA for any future legal liability result- that Los Angeles would do what O’Malley’s former ing from such a removal.25 The Dodgers had won on home city would not. In determining that a privately- these issues as well. owned stadium was not a public purpose, New York O’Malley’s victory was a testament both to good officials had concentrated on what the private entity — lawyering — O’Melveny & Myers had poured a great the Brooklyn Dodgers — would receive, rather than deal of time, money and talent into the appeal — and general public advantage. Gibson’s decision for the to Silver and Ruben’s tactical mistakes. But it also California Supreme Court reversed this perspective. reflected the ways in which California’s political and Once he decided the City of Los Angeles would real- legal culture differed from that of New York. The Cali- ize benefits from the stadium agreement, his inquiry fornia Supreme Court had ruled that private profit was essentially ended. That Walter O’Malley might also not the measure of public gain. The Court had con- realize benefits may have mattered to New York’s strued the discretionary power of a legislative body political leaders and judiciary, but it did not matter to broadly, permitting it to interpret “public purpose” Gibson and his colleagues. By reconciling substantial in a way that could confer substantial private advan- private gain with public good, the California Supreme tage. It had also given legal sanction to the idea that Court both settled a legal question and gave expres- the state could partner with business in the interests sion to a culture of entrepreneurship and risk that had of both, and that entrepreneurial gain sponsored and cschs newsletter · fall/winter 201 5 abetted by the state meant gain for all and was thus purpose,” the California Supreme Court became as public in intent and effect. Government promoting much a part of that act of creation as any politician, favored enterprises, picking winners and losers: this is planner, or bricklayer. ✯ what Ruben and Silver had opposed. These men rep- resented a political impulse with lineage tracing back Endnotes to the Age of Jackson and even Jeffersonianism. But in 1. Ruben v. City of Los Angeles, Los Angeles Superior Court, this instance, it was the Hamiltonians, the champions No. 687210 (1958). of public-private partnerships, who had won. The Cali- 2. Kirshbaum v. Housing Authority, Los Angeles Superior fornia Supreme Court had ruled that the state could Court, No. 699077 (1958). do more than seek to create an economic climate that 3. Walter O’Malley, “For Immediate Release,” May 26, benefited business generally. It could also assist spe- 1958, Walter O’Malley Archive, Los Angeles, CA (hereaf- cific businesses that in the view of government officials ter “O’Malley Archive”); Los Angeles Times, May 27, 1958; promoted a public purpose. And sports entertainment, “Chavez Ravine Fact Book,” O’Malley Archive. the court had held, was such a public purpose. 4. Los Angeles Times, June 25, 1958; Neil Sullivan, The Dodg- Walter O’Malley had come to Los Angeles to escape ers Move West (New York: Oxford Univ. Press, 1987) 166–67. a business environment in New York that had largely 5. Los Angeles Mirror News, June 21, 1958; Los Angeles Times, equated profit making with profiteering. There were, to June 21, 1958; Los Angeles Examiner, June 21, 1958; Sullivan, be sure, public officials as well as ordinary citizens in the The Dodgers Move West, 164. Los Angeles region opposed to government–business 6. The Dodgers Move West, 166–67. partnerships such as the Dodger Stadium project and 7. Ibid.; Los Angeles Times, June 25, 1958. especially sensitive to what they considered evidence of giveaways. But by January 1959, O’Malley’s state-aided 8. See Los Angeles Daily Journal Report Section, Aug. 25, 1958, pp. 22–27; New York Times, July 14, 1958; Sullivan, The entrepreneurial vision had prevailed in contests in both Dodgers Move West, 168–71. the electoral and legal arenas. He had won two victories that would not have been possible in New York. Both the 9. Los Angeles Daily Journal Report Section, Aug. 25, 1958, 25. voters and the courts had justified his decision to move 10. Id., at 26. to Los Angeles. 11. Id., at 27. Silver and Ruben made the customary noises about 12. Washington Post, July 15, 1958. continuing the fight up to the U.S. Supreme Court, but 13. The Dodgers Move West, 171; Sporting News, Nov. 19, 1958. the Gibson decision essentially ended their hopes of 14. Sporting News, Nov. 19, 1958; letter, Harry Walsh to Kay stopping the stadium project through the legal system. O’Malley, Oct. 16, 1958, O’Malley Archive. A few months later the California Supreme Court in 15. Sporting News, Nov. 19, 1958; Andy McCue, Mover and related litigation again unanimously sustained its rul- 26 Shaker: Walter O’Malley, the Dodgers, and Baseball’s West- ing and then denied Ruben and Silver’s petition for ward Expansion (Lincoln: Univ. of Nebraska Press, 2014) rehearing, after which Silver asked the U.S. Supreme 228, 230–31. Court to hear his appeal. It refused to accept the case for 16. Ruben v. City of Los Angeles, Supreme Court of the State review in October 1959, bringing the Dodger Stadium of California, L.A. Nos. 25238 and 25239, Opening Brief of litigation to an end and leaving the California Supreme Appellant Los Angeles Dodgers, Inc., 18. Court decisions as the definitive word on the validity 17. Ibid. of the contract. After a legal battle of over two years, O’Malley had gotten what he wanted from the Court: 18. Id., at 12–18, 22–24. Permission to build his stadium. 19. Id., at 23. When Dodger Stadium opened to great acclaim on 20. Id., at 17. April 10, 1962, it marked not just the beginning of a 21. City of Los Angeles v. Superior Court (1959) 51 Cal.2d 423. new era for baseball in Los Angeles — the stadium 22. Id., at 433–34. continues to this day as one of the most beloved in the 23. Id., at 434. sport — but for the city as a whole. Although down- town Los Angeles remains a work-in-progress, it is a 24. The Dodgers Move West, 173. far cry from the drab backwater it resembled when 25. City of Los Angeles v. Superior Court, 51 Cal.2d at 436; the Dodgers arrived in 1957. Much of the credit in this The Dodgers Move West, 173. regard should go to Dodger Stadium, which began the 26. Ruben v. City of Los Angeles (1959) 51 Cal.2d 857. process of building a modern downtown for a modern Excerpted from CITY OF DREAMS: Dodger Stadium and the city, a process that has taken decades to bear fruit. By Birth of Modern Los Angeles by Jerald Podair. Copyright © 2017 making the construction of Dodger Stadium possible by Princeton University Press. Reprinted by Permission. Reprinted by through an expansive reading of the idea of “public permission of Princeton University Press.

6 fall/winter 201 · cschs newsletter In Conversation with Justice Kathryn Werdegar CSCHS’s Fall Public Program by Molly Selvin*

of federal Judge Brett Kavanaugh to the U.S. Supreme Court.1 Justice Werdegar served for 23 years on the Supreme Court before retiring in 2017. She was the third woman appointed to the high court and is admired for her sharp intel- lect, modest demeanor and grace — qualities much in evidence at the evening event. Some highlights: On state ballot initiatives Noting the long list of state measures on the November 2018 ballot, Justice Werdegar said she shares the con- Journalist Jim Newton and retired Justice Kathryn Werdegar. cerns of many observers that Cali- fornia’s initiative and referendum ne mission of the California Supreme process often produces unworkable, blunt-force laws. Court Historical Society is to present pub- She cited the original initiatives from prior decades Olic programs that explore the past in order mandating “three strikes and you’re out” for crimi- to enlighten the future. Continuing that tradition, nal defendants and strict term limits for legislators, the Society hosted a compelling and timely conversa- and noted that most Californians eventually came to tion on November 7 between retired Associate Justice regard those measures as unduly harsh. But, as she Kathryn Mickle Werdegar and veteran Los Angeles noted, amending them also required voter approval, a journalist Jim Newton. costly process that took multiple tries. Their event drew a hundred or so to the historic Los At the same time, Justice Werdegar views the deci- Angeles Central Library downtown on a balmy evening. sion by voters in 2010 to take redistricting away from The conversation dove deep into a number of issues state politicians as positive. The voter-created Citizens affecting courts, the state and the nation, including judi- Redistricting Commission now draws California’s cial elections and lifetime tenure, science and technol- state legislative and congressional districts in a non- ogy, California’s recent governors, and the nomination partisan and more transparent process. She hopes for even greater transparency, specifically concerning the * Molly Selvin is the CSCHS newsletter editor. top funders for future ballot measures.

Below Left: Retired Justice Carlos Moreno with Public Counsel President and CEO Margaret Morrow, who introduced Justice Werdegar and Jim Newton. Below right, from left: Journalist Jim Newton; CSCHS President George Abele, Paul Hastings LLP; attorney and CSCHS Past President Jennifer King; and Bob Wolfe, attorney and CSCHS board member who organized the evening.

cschs newsletter · fall/winter 201 7 On judicial appointments She also noted that recent governors took different Justice Werdegar described California’s judicial appoint- approachs to judicial nominations. Gov. George Deu- ment and confirmation process as “the best system” in kmejian, she said, generally tapped former prosecutors part because it has remained largely non-partisan. “Cali- with significant bench experience. Gov. Jerry Brown, on fornia has been very fortunate,” she said, noting that each the other hand, has appointed academics without judi- of the three chief justices with whom she served (Mal- cial experience directly to the Supreme Court, including colm Lucas, Ronald George, and Tani Cantil-Sakauye) Justices Mariano-Florentino Cuéllar, Leondra Kruger has been “outstanding.” And while she is sympathetic and most recently, Joshua Groban. to voters confronted by long lists of judges on the ballot, Jim Newton pressed Justice Werdergar for her “I don’t think lifetime appointments are a good thing,” thoughts on the confirmation hearings for U.S. Supreme she said. Court Justice Brett Kavanaugh. “It was terribly pain- ful to watch,” she said. “His response was disturbing, immoderate and intemperate.” Kavanaugh “made it Photos this page, top to bottom: very plain” how he would judge a number of issues, she Audience at L.A. Central Library. said, raising the question of whether he will recuse him- From left: Retired Justice Kathryn Werdegar with self in those instances. Justice Lawrence Rubin, 2nd Dist. Court of Appeal (Los Angeles) and Dan Grunfeld, attorney and former On writing opinions CSCHS president. How is writing dissents different from writing majority From left: Justice Lawrence Rubin, 2nd Dist. Court of opinions? Justice Werdegar said she sometimes omit- Appeal (Los Angeles); Dan Potter, chief executive officer, 6th Dist. Court of Appeal (Santa Jose) and Jonathan ted non-essential points from her majority opinions in Steiner, executive director of the California Appellate order to win a reluctant colleague’s vote. “In a dissent Project, Los Angeles. you’re freer,” she said. “I’m very fond of my dissents,” she added, noting they offer an important window, and All Photos: Greg Verville/GV Photography should be viewed alongside her majority opinions, in order to understand her thinking. On science, technology and social change Justice Werdegar said she and her colleagues struggle to deal with societal and technological change. Yet issues like privacy, water rights, environmental degradation, an individual’s right to his or her biological material, and surrogacy increasingly come before courts. “Rea- soning by analogy is difficult in these cases,” she said. “These issues more properly belong in the Legislature,” she suggested, which unlike courts, can undertake out- side research to help make policy. Special kudos to Society Board Member Bob Wolfe for organizing a fascinating program, and thanks also to John F. Szabo, city librarian of the Los Angeles Public Library, and Public Counsel President and CEO ­Margaret Morrow­ for their help and participation. ✯ Endnotes 1. For more on Justice Werdegar, see “Oral History of Justice Kathryn Mickle Werdegar,” Calif. Leg. Hist. 12 (2017) 64–481.

BREAKING NEWS: On Nov. 14, Governor Jerry Brown nominated a senior advisor, attorney Joshua Groban, as associate justice of the California Supreme Court to fill the seat vacated with Justice Werdegar’s retirement. The Newsletter will include a profile of Groban in the Spring/Summer 2019 issue.

8 fall/winter 201 · cschs newsletter A SECOND LOOK AT A “Manifestly Unfair” Bar Examination: The October 1951 Test and Its Aftermath By Kyle Graham*

EDITOR’S NOTE: “A Second Look” 1951 results, there arose a great is a series of articles that provides hue and cry. Something must be new perspectives on notewor- wrong. The examination must thy decisions by the California have been unfair. Or it must have Supreme Court. been unfairly graded. The bar in general, and the Bar Examiners in he California bar particular, must be concentrating examination came under on reducing competition for them- Trenewed scrutiny last selves by keeping aspirants out.”5 year, with falling passage rates A representative of the Com- feeding criticisms that the mini- mittee of Bar Examiners sought mum score required to pass had to explain the exam results in the been set too high. This contro- January 1952 edition of the Journal versy was quelled only by the of the State Bar of California. He California Supreme Court’s wrote that “the examination and decision to leave the minimum its grading were substantially the score where it stood, at least for same” as in recent years, and “the the time being. This was not Rockwell et al. v. State Bar of only remaining factor which could the first time that the state bar California, Petition for Review and account for [the results] is a drop in examination has generated con- Brief in Support of Petition. the quality of the applicants, and troversy. This installment of “A Image: California State Archives that is the conclusion which we Second Look” ventures back to Bar Examiners have arrived at.”6 the early 1950s, when an administration of the test The author added that “this does not necessarily mean a led to special hearings before the Legislature, a push decline in the quality of the applicants below a reasonable by frustrated applicants to have the Supreme Court norm, but more likely a decline from an abnormal high regrade their exams, and a messy public spat between which obtained in 1948, 1949 and 1950 — not a decline at the members of the Court. all, therefore, but rather a return to normal.”7 The October 1951 administration of the bar examina- tion consisted of 25 essay questions, one of which was Hearings Before the Legislature optional.1 When the initial round of grading was com- Neither the public nor legislators were completely per- plete, it was discovered that only 15 percent (160 out of suaded that test-takers, as opposed to the test itself, 1041) of test-takers had received passing scores of 70 per- were to blame for the poor results on the October 1951 cent or higher.2 A “reappraisal” of 326 exams that had exam. Within two months of when the test results were come somewhat close to receiving a passing score more released, a state Senate Interim Judiciary Committee than doubled the number of successful applicants.3 The convened hearings on the bar exam and how it had been overall pass rate of 37.5 percent nevertheless remained graded. The two dozen witnesses included unsuccess- on the low side. Although four administrations of the ful test-takers, law school deans, and State Bar officials.8 fall examination over the prior 18 years had yielded Goscoe Farley, the secretary to the Committee of Bar lower pass rates, the average pass rate for fall exam Examiners, told the interim committee that the test administrations between 1946 and 1950 had been quite had been fair, and the results not all that surprising. He a bit higher, at 50.9 percent.4 explained that in administrations of the bar exam prior The release of the October 1951 exam results led to to World War II, pass rates had usually been between 40 an uproar. One contemporary observer wrote, “Almost to 45 percent. Results sagged during the war “because immediately after the announcement of the October, the law schools had very few students, and the ones they had didn’t seem to be top students.” But “[a]t the end of * Kyle Graham is Assistant Chief Supervising Attorney of the war veterans returned and the law schools had four, the California Supreme Court. five, and six, sometimes eight applications for every seat cschs newsletter · fall/winter 201 9 they had in the law school, so the school selected the best “[d]etermine, after investigation and hearing, whether students,” leading to higher pass rates. Now, Farley sur- the 47 students whose original marks were between 65 mised, “I think the schools are getting back to normal.”9 and 67.1 percent and who were failed by the Board of Other witnesses made similar comments, with multiple Reappraisers should not be admitted to the bar without law school deans defending the bar examination and — further examination,”19 to “[r]eview the papers of stu- echoing similar comments made in connection with the dents receiving original marks between 63.75 and 65 ongoing legislative review of law school accreditation percent to determine if the procedures which were fol- standards — attributing the poor results to substandard lowed with regard to this group resulted in substantial law schools that were being allowed to survive.10 injustice to any of the 48 applicants who were failed,”20 The interim committee wasn’t convinced. It was and to “[m]ake such further inquiry concerning the noted at the hearings that on five of the questions, papers between 60 and 63.75 percent as will satisfy the fewer than one-quarter of examinees received a pass- court that no students in that category should have ing grade.11 Another issue raised during the hearings been reappraised and passed.”21 The resolution further concerned the reappraisal process for exams that had requested that the Court and the Committee of Bar not quite earned a passing score on initial review. Three Examiners consider several changes in the administra- attorneys were responsible for these reassessments, tion and grading of the bar examination, including “the which consisted of simple pass-or-fail determinations. giving of a reasonable number of alternative questions Their overall grading patterns disclosed that one of the in each examination,” and “[e]stablish[ing] a base, per- reappraisers was relatively generous in giving a passing haps at a level 5 percent below the average percentage grade; the second, more moderate; and the third, rather of success in the bar examinations of the preceding five harsh.12 This discrepancy informed a perception that years, above which there must be no failures.”22 whether an examinee passed on reappraisal depended at least as much on the identity of his or her reviewer as The Supreme Court, Bar Grader? on the correctness of his or her answers. Furthermore, The Supreme Court did not rush to accept the invita- there appeared to be a marked difference in pass rates tion to review scores of bar examinations. But some between reappraisals occurring early in the review pro- frustrated applicants were not prepared to wait. cess and reassessments of similarly situated examina- Within days of the resolution’s issuance, six peti- tions that happened later, with the later-reviewed exams tions were filed with the California Supreme Court by being assessed more favorably.13 This shift also suggested October 1951 test-takers who sought further review of that the reappraisers were not applying consistent stan- their failing grades. These actions, brought on behalf dards to the tests before them. of eight petitioners in all, invoked section 6066 of the After the hearings concluded, the interim commit- Business and Professions Code. This statute, enacted in tee adopted a resolution that embraced several find- 1939, provides, “Any person refused certification to the ings and requests. This resolution, issued on February Supreme Court for admission to practice may have the 2, 1952, observed at its outset that “[t]here is no sugges- action of the board, or of any committee authorized tion of dishonesty, favoritism, intentional severity or by the board to make a determination on its behalf, carelessness in the conduct of the examination.”14 The pursuant to the provisions of this chapter, reviewed by poor results upon first grading of the examinations the Supreme Court, in accordance with the procedure were instead the result of “[u]nusual difficulty in at prescribed by the Court.” least three of the questions” and “[s]trictness of grad- The petitions attacked the October 1951 bar exami- ing.”15 The resolution also noted that the resuscitation nation as arbitrary and unfair. One of the six petitions, of a large number of examinations through reappraisal filed on behalf of three unsuccessful applicants, alleged was “a radical departure from the original purpose that “the standards used by the Committee of Bar of reappraisement which was to remedy iniquities Examiners of the State Bar in determining the quali- in a relatively few borderline cases.”16 Furthermore, fications of applicants for certification to this Court although each of the reappraisers “was competent and are arbitrary and capricious,” and that, as applied by conscientious,” their “lack of uniformity may have the reappraisers, these standards “have resulted in a worked substantially to the advantage of certain stu- deprival of the equal protection of the law for these dents and the disadvantage of others.”17 The resolution petitioners and others similarly situated.”23 The peti- further observed that “[m]any of the persons adversely tioners asked the Court to “review the refusal of the affected by the decision of the reappraisers are veterans Committee of Bar Examiners to certify them to this of World War II who sacrificed several years of their Court for admission to the State Bar of California,” normal scholastic life in the service of their country.”18 with such review to include “the production before it The resolution then segued into a request to the of the particular examination papers of the petitioners California Supreme Court. The Court was asked to and other[s] similarly situated, including therein all

10 fall/winter 201 · cschs newsletter papers within the reappraisal group, together with the Justice Carter Dissents 24 records of the graders in the original gradings.” The But the decision was not unanimous. Associate Jus- petitioners included as exhibits to their petition not tice Jesse Carter would have granted the petitions. only the scores they received on each of the 24 ques- Carter also took the unusual, if not unprecedented, tions answered, but also their law-school transcripts, step of filing a written dissent to the order denying with the prominent notations that all were military 25 the petitions. veterans. Carter’s dissent, which Associate Justice B. Rey Schauer Another petition asked the Court to direct the Com- also signed, quoted the interim Senate committee’s reso- mittee of Bar Examiners “to submit to the Court all of lution in its entirety. Carter the 24 examination papers of the petitioner along with also emphasized that no the related material, including the questions, and that applicant had received a the Court, itself, or, if it prefers, an appointed referee, grade higher than 80.8 make the appropriate findings concerning the alleged percent on the October disparity between the grades assigned and the grades 1951 examination, a fact deserved, the average juristic quality of the petition- he characterized as proof er’s examination papers, and whether under a reason- that “the examination was able grading system they deserve an average passing manifestly unfair.”30 The grade.”26 This petitioner — an émigré jurist from Aus- dissent also called out Far- tria, who had come to America in 1940 seeking refuge ley’s concession, made in from Nazi oppression — related that he already had a speech given just a week published several articles in American legal periodicals, before, that “inadvertently and had been an attorney in the United States Depart- three or four questions ment of the Army for several years prior to taking the Associate Justice bar examination.27 out of the twenty-four Jesse W. Carter The petitioners must have realized that they had a contained problems that tough case. This was not the first time that frustrated had not been adequately 31 test-takers had asked the California Supreme Court to covered at most law schools.” Carter rejoined, “when take a second look at their examinations, and the Court the future of more than a thousand applicants who had made it clear that it would not review the substance have spent three years of time, money, and labor in the of a bar examination answer in anything other than study of law is at stake, . . . there should be no room for truly exceptional circumstances. Less than two decades such ‘inadvertence’ on the part of the Committee of Bar 32 before, it had resolved, “The attitude of this Court is Examiners.” that if any dissatisfied applicant can show that he was Carter’s dissent continued, “I am convinced that denied passage of the state bar examinations through petitioners herein have made out a prima facie case fraud, imposition, or coercion, or that in any other man- for a review by this Court of the October, 1951 bar ner he was prevented from a fair opportunity to take the examination and that the petitions should be granted examinations, this Court will be willing to listen to his and a complete record of all proceedings before the complaint. Inability to pass the examinations, which are State Bar relative to said examination certified to this 33 successfully passed by other applicants, will, of course, Court for such determination as may be warranted.” not be inquired into by the Court. Also, . . . one’s general Carter acknowledged that “the granting of these peti- qualifications are not to be substituted for the requisite tions may place a heavy burden on this Court because knowledge of law which one must possess in order to of the effort required for a full review of the proceed- be admitted into the legal profession.”28 The subsequent ings involved in said examination.”34 Nevertheless, enactment of Business and Professions Code section he was “convinced that the matter is of such great 6066 had not made the Court much more willing to importance to the public, the applicants and the law intervene. In 1941, the Court rejected another unsuc- schools in this state and elsewhere as to justify the cessful bar applicant’s plea to review his examination, undertaking.”35 with the majority emphasizing that the petitioner Justice Carter’s dissent was filed on May 12, 1952. “makes no charge of fraud, imposition or coercion, and But that does not quite end the story. Carter wanted his does not assert that he was denied a fair opportunity to dissent to be published in the official reports. When it take the examination.”29 did not appear in the advance sheets, he spoke to the Unsurprisingly, the Supreme Court declined the press. A resulting article in the June 5, 1952, edition petitioners’ requests for further review of their test of The San Francisco Chronicle featured the headline, answers. The Court summarily denied all six petitions “Carter Says Dissent in Bar Exam Suppressed.” The on May 8, 1952. article quoted Carter as saying, “I am convinced that cschs newsletter · fall/winter 201 11 the suppression was at the instigation of the Chief Jus- 16. Ibid. tice (Phil S. Gibson) without consulting a majority of 17. Ibid. 36 the court.” 18. Ibid. Gibson denied ordering the suppression of Carter’s 19. Ibid. dissent.37 Carter nevertheless continued to repeat the essence of his charge to reporters, in what was now 20. Id. at 24–25. being described as a “bitter internal quarrel” within 21. Id. at 25. 38 the Court. Ultimately, Carter’s dissent was never 22. Ibid. published in the bound volumes of the official reports. 23. Brief in Support of Petition for Review, Rockwell et al. v. The members of the Court did agree, however, that State Bar of California (No. SF 18567, Feb. 13, 1952), at 4. in the future, dissenting opinions to minute orders in 24. Petition for Review and Brief in Support of Petition, which no majority opinion was filed would be for- Rockwell et al. v. State Bar of California, (No. SF 18567, Feb. warded to the publishers for possible inclusion in the 13, 1952), at 9. advance sheets. 25. Id. at Exhs. A, B, C, A(1), B(1), and C(1). Epilogue 26. Petition for Review and Brief in Support of Petition, The furor over the October 1951 bar examination led Koessler v. Committee of Bar Examiners (No. SF 18562, Feb. to changes in the test, including reinstatement of the 4, 1952), at 7. prior practice of allowing test-takers to answer only 27. Id. at 3, 4. Koessler’s petition explained that he had been a four questions out of every five presented.39 And as for practicing lawyer in Vienna for two decades, only to be “com- the eight petitioners who asked the Supreme Court to pelled, by the [N]azi ‘Anschluss’ of Austria, to leave his coun- try of origin.” He emigrated to the United States in 1940, and regrade their exams, this short story has a happy end- became an American citizen in 1945. Id. at 4. ing. All of them eventually passed the bar examina- tion. Six were admitted to the bar in 1952; the other 28. In re Admission to Practice Law (1934) 1 Cal.2d 61, 64. two in 1953.40 ✯ 29. Staley v. State Bar of Cal. (1941) 17 Cal.2d 119, 121. 30. Koessler v. Committee (No. SF 18562) et seq., dissent from Endnotes denial of writ petitions (Carter, J.), 10. 1. Graham L. Sterling, Jr., “The October 1951 California Bar 31. Ibid. Here, Carter was quoting comments by Farley, as Examination,” J. of the State Bar of Calif. 27 (Jan.–Feb. 1952): they appeared in “State Student Association Names Goscoe 37, 41. Farley ‘Man of the Year,’ ” The Recorder, May 2, 1952, 1. 2. Senate Interim Judiciary Committee, Progress Report to 32. Ibid. the Legislature (March 1952), 15, 20. 33. Dissent by Carter, J., at 13–14. 3. Id. at 23–24. 34. Id. at 14. 4. Sterling, at 40; Senate Interim Judiciary Committee, at 15. 35. Ibid. 5. Sterling, at 37. 36. Phil Gibson, Memorandum in re Publication of Dissents 6. Id. at 43 (italics in original omitted). to Orders Denying Petitions for Writs (1952), in California 7. Ibid. Supreme Court Justice Jesse W. Carter: An Interview Con- 8. See Don Thomas, “Students Who Flunked Bar Test Tell ducted by Corinne L. Gilb (1959) 260; see also “Carter Lashes Stories at Probe,” Oakland Tribune, Feb. 1, 1952, 5. Out At Court Failure To Print Dissent,” Daily Independent Journal (San Rafael, CA), June 5, 1952, 1. 9. Senate Interim Judicial Committee, at 15. 37. Memorandum by Gibson, at 260. 10. See Thomas, at 5. 38. Id. at 262–263. 11. Senate Interim Judicial Committee, at 20. 39. “State Student Association Names Goscoe Farley ‘Man of 12. Id. at 19, 23, 24. the Year,’ ” The Recorder, May 2, 1952, 1, 6. 13. Id. at 24, 26–27. 40. This information was obtained through searches per- 14. Id. at 24. formed on the State Bar of California’s website, www.calbar. 15. Ibid. ca.gov.

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12 fall/winter 201 · cschs newsletter California’s Reporter of Decisions Publishes More Than 1000 Opinions Each Year in the Official Reports

awrence Striley looked first compiled in 1942 and now in its remarkably serene on a late Mon- fourth edition. A fifth edition is in the L day afternoon, particularly for works, Striley said. someone whose already-large responsi- In May, Striley took on a new task. bilities only continue to expand. Over time, many Internet links, includ- As California’s 25th reporter of ing those cited in court decisions, are decisions of the Supreme Court and revised or disappear. In response to the Courts of Appeal, Striley is respon- this problem of “link rot,” the Califor- sible for the preparation and publica- nia Supreme Court has joined the U.S. tion of California’s appellate opinions Supreme Court and other courts in in the Official Reports. These days, that efforts to preserve cited web pages. Stri- involves publication of more than 1,000 ley’s office has created a web page archive published Supreme Court and Court of at http://www.courts.ca.gov/38324.htm Appeal opinions each year, and another of links cited in California appellate approximately 9,000 unpublished appel- decisions, showing cited web pages as late court opinions. Lawrence W. Striley, they existed at the time the opinion was Reporter of Decisions That workload continues to grow filed. and yet for Striley, “this is the best job Appointed in 2014, following the I’ve ever had.” “I feel very lucky,” he said recently in his retirement of Edward W. Jessen who served since 1989, Supreme Court office in San Francisco’s Earl Warren Striley was delighted to return to California. Raised Building. in Orange County, he is a graduate of Cal State Long Most states, but not all, name a reporter of decisions. Beach and earned his law degree from Washington & However, faced with tight budgets and the migration of Lee University School of Law in Virginia. legal research online, some states have done away with Following law school, Striley signed on with a gen- paper publication of appellate opinions. California con- eral practice firm in a small West Virginia town. tinues to publish Official “I wanted experience in court right away,” he recalled, Reports “advance pam- and got it. phlets” of approximately Before becoming the reporter of decisions, Striley 500 pages every 10 days or worked at LexisNexis, responsible for the printing and so, bound volumes com- publication of the official versions of opinions from Cali- prising about 1,500 pages fornia and several other states. He draws on that broad of Court of Appeal opin- experience as vice president of the Association of Report- ions monthly, and 2.5 ers of Judicial Decisions, which brings together official bound volumes of about reporters from the U.S. and Canada. Striley will become 1,500 pages of Supreme the group’s president in 2019. Court opinions yearly — Prior to his law career, Striley spent five years with all in partnership with the Prime Ticket Network, working his way up from a private publisher. In a college intern to the associate director coordinat- addition, each of these ing with staff in the production truck to air sporting Lawrence Striley holding a decisions is posted on the events. These were the years when Wayne Gretzky and bound copy of the Magna judicial branch website. Magic Johnson dominated the L.A. Kings and Lakers. Carta during a visit to the Striley’s staff of law- Striley recalled fondly attending a Lakers NBA Nevada Supreme Court yer editors reviews each championship parade and standing on the steps of Library, 2017. opinion for grammar, Los Angeles City Hall with the team even though, as Photo: Cynthia Striley spelling errors and the he noted, “I had nothing to do with them winning the accuracy of the factual championship.” He still follows the Lakers, Rams and information included in both the advance sheets the Kings. ✯ and bound volumes of published opinions. He is also responsible for updating the California Style Manual, ­— M.­S. cschs newsletter · fall/winter 201 13 Vitrines in the Earl Warren Building display photographs and memorabilia (above) from the California Supreme Court’s Latino justices. On view until fall 2019, the exhibit is one of several, including one on the Court’s women justices (right), that the California Judicial Center Library has mounted to promote interest in the history of California’s courts. Photos Courtesy California Judicial Center Library Judicial History on Display: Exhibits on California’s Reporter of Decisions, Women and Latino Justices

t’s easy to miss the seven glass display cases in Library, including Law Librarian and Archivist Martha the Archive Room on the first floor of the Supreme Noble and Donna Williams, director of the center’s library. ICourt’s headquarters in the Earl Warren Building at New acquisitions often inspire these exhibits. Others San Francisco’s Civic Center. The area is intentionally lit have been designed to commemorate anniversaries, or dimly, and members of the public as well as lawyers with scheduled to coincide with other events or observances. business before the courts can easily miss the vitrines as The displays are an opportunity for the Library’s they hurry past. Special Collections & Archives staff “to share selections But the exhibits on view there and in the nearby from our holdings with the public, and promote an Clerk’s Office are worth a stop. interest in the history of the courts,” Noble said. The Archive Room currently showcases the four The reporter of decisions exhibit, “In Writing With Latino justices who served as or are currently associate Reasons Stated,” nicely illustrated that public education justices of the California Supreme Court: Former Justices mission. Cruz Reynoso, John A. Arguelles, Carlos Moreno, and California’s first Constitution, adopted in 1849, present Justice Mariano-Florentino Cuéllar. Opened in directs the Legislature to provide for the “speedy” publi- September to coincide with Latino Heritage Month, the cation of these decisions and the state’s current Consti- exhibit features photos, biographical information, publi- tution requires that the decisions of the Supreme Court cations and some memorabilia from the four justices. The and Courts of Appeal that determine causes “shall be in display will remain on view until fall 2019. writing with reasons stated.”1 Other recently installed exhibits celebrate, respec- The reporter and his staff now oversee the preparation tively, the women justices of the Supreme Court, and the and publication of all Supreme Court decisions and all history of California’s reporters of decisions — the latter published Court of Appeal decisions in the Official Reports who have been critical but generally unacknowledged and post all appellate decisions — including “unpub- players in the state’s legal history. lished” decisions — on the judicial branch’s website. The changing exhibits are the work of the Special Col- Among the 25 men who have held this position since lections & Archives staff at the California Judicial Center 1850 (no women have held the position to date), were

14 fall/winter 201 · cschs newsletter rogues, some characters and one of the state’s premier draft the Judicial Council Rules on Appeal. Before he was scholars of California law. appointed reporter, Witkin was “law secretary” (in other William Gouverneur Mor- words, staff attorney) for Associate Justice William B. ris (LEFT), for example, served Langdon and Chief Justice Phil B. Gibson. as reporter during 1855, then One of the longest-serving reporters was Edward in the Union Army during W. Jessen, who held the position from 1989–2014. He the Civil War. In 1869, having was also a member of the editorial task force appointed returned to California, Mor- by the Judicial Council to rewrite California’s Rules of ris was named United States Court pertaining to the appellate process.3 Lawrence Marshal for the District of Striley (see Article, page 13) took over as California’s California. current reporter of decisions when Jessen retired. Gov. John B. Weller The display in the Office of the Clerk of the Supreme appointed Harvey Lee as Court, concerning the seven women who have served on reporter in 1858 but Lee’s the high court, entitled “Voice and Vision,” is on view work was poor, and an effort was made to repeal the through March 2019. This exhibit is focused on Chief Jus- law that authorized gubernatorial appointment of the tices Rose E. Bird and Tani Cantil-Sakauye, and Associate reporter.2 Lee expressed his displeasure with the repeal Justices Joyce L. Kennard, Kathryn M. Werdegar, Janice effort to Charles S. Fairfax, the clerk of the Supreme R. Brown, Carol A. Corrigan, and Leondra R. Kruger. It Court. Fairfax reportedly was insulted by Lee’s language includes biographical information, photographs, certifi- and a fight ensued. Lee attacked Fairfax twice with his cates and publications by and about each justice. A previ- swordcane, inflicting serious harm. Fairfax drew his ous editor of this newsletter described these justices as “an pistol as Lee attempted a third strike but ultimately held extraordinary group of highly intelligent, extremely hard- his fire. Lee was soon replaced by John Harmon in 1859. working, fiercely independent lawyers who are blessed Bernard Witkin (right), a with astonishing reserves of stamina.”4 ✯ legend in California law, was Endnotes appointed the 21st reporter in 1940, a position he held until 1. California Const., article VI, section 14. 1949. Witkin, of course, is best 2. Currently the Supreme Court appoints the reporter of known for his highly-regarded decisions. treatises on California law, vol- 3. See also, Edward W. Jessen, “Headnotes About the Reporters, umes that have been cited more 1850–1990,” CSCHS Newsletter, Spring/Summer 2007, 1, 5–8. than 20,000 times in decisions 4. Ray McDevitt and Maureen R. Dear, “A Salute to the of the California Supreme Court Women Justices of the California Supreme Court,” CSCHS Newsletter, Spring/Summer 2013, 2–7. and Courts of Appeal. He also authored the first edi- tion of the California Style Manual, in 1942, and helped — M.S. cschs newsletter · fall/winter 201 15 APPRECIATIONS Stephen R. Reinhardt: A Sense Of Fairness And Compassion BY HENRY WEINSTEIN*

tephen Reinhardt’s sometimes loving tributes to sudden death on the man long known as the SMarch 29 jarred and country’s most outspoken, saddened me. Just six weeks liberal jurist. Those occa- earlier, I sat next to him in a sions brought memories to judge’s chair in the ceremo- the surface. nial courtroom of the Ninth Over a 20-year period, as Circuit Court of Appeals in a reporter for the Los Ange- Pasadena during a confer- les Times, I wrote dozens of ence on the impact of Presi- stories about Reinhardt’s dent Jimmy Carter’s judges trenchant opinions and his on the nation’s largest fed- blistering speeches about eral circuit. We chatted at the increasingly cramped lunch, where he was joined and uncharitable view the by former law clerks, includ- U.S. Supreme Court took of ing one I lobbied him to hire civil rights and civil liberties. after she had been my stu- Among them was a 1992 law dent in the inaugural class at school graduation speech in U.C. Irvine Law School. which Reinhardt declared As I spoke to him that that the federal courts were day, it was clear that at 87 he becoming “a bastion of white was still actively engaged in America.” He lamented, his cases. He simultaneously “only a few years ago it was manifested the same acute the federal courts, and par- intellect, lively spirit and peri- ticularly the Supreme Court, odic grumpiness. He lamented that offered the greatest hope the worsening health of his to our minorities. The mes- wife, Ramona Ripston, long- sage the new Supreme Court Stephen R. Reinhardt time director of the ACLU of Circuit Judge of the U.S. Court of Appeals has delivered to the minority Southern California, the fall for the Ninth Circuit communities is clear: We no of his colleague Alex Kozinski longer care; we have other stemming from sexual harassment charges and the state of concerns; look elsewhere for help.” Reinhardt mani- the country under President Donald Trump. fested no concern that the judges he blasted were in posi- The day Reinhardt died I called several friends, des- tion to reverse his rulings — something that occurred perate to engage in conversation about what a loss to dozens of times during his 38 years on the bench. the country and the depressing prospect that Trump, During the 20 years I covered the Ninth Circuit, I a man with no respect for the Constitution or judges, conversed frequently with Reinhardt. We talked on was going to pick Reinhardt’s successor. In late April, the phone, at restaurants, walking on the beach near I attended a memorial service for Reinhardt at a West- his condo in the Marina del Rey and in his chambers. wood movie theater, where family members, former Among the subjects of our chats: his law clerks, the law clerks, attorneys, his long-time secretary, law pro- Lakers, the death penalty, the Raiders, civil liberties, fessors, judges and two governors delivered moving, the Dodgers, our wives, our children, Bobby Kennedy, physician-assisted suicide, movies, Broadway plays, his * Henry Weinstein is a professor of the practice of law at the respect for his conservative colleague John Noonan, his University of California, Irvine School of Law. He was a staff admiration for his liberal colleague Betty Fletcher, and writer for the Los Angeles Times for 30 years and covered the how he painstakingly put his opinions through dozens Ninth Circuit from 1989 to 2008. of drafts.

16 fall/winter 201 · cschs newsletter But among the memories one of the most striking judge appointed by a Republican president greeted me was how Reinhardt instigated my decision to write a warmly in his chambers but all he wanted to talk about series of articles in which his name never appeared. was the perennially problematic football fortunes of the On a hot July evening in 1998, I returned to my University of California Golden Bears, whose games I hotel room in Atlanta where I was researching stories had announced on the student radio station in the mid- for the Times about the lack of adequate representation 1960s. Another appointee of a Republican president for poor people accused of capital crimes in Georgia. I showed me the draft of an opinion he had written in a checked my office voicemail and found a message from big case. I will never be certain if he really wanted to Reinhardt. know what I thought or simply was trying to flatter me; By then, I respected Judge Reinhardt’s analytical in either case, I learned a lot. Harry Pregerson, another skill, powerful writing style and most of all his courage Carter appointee to the Ninth Judicial Circuit, periodi- to adhere to the Constitution as he saw it and not fear cally called me on weekends seeking my help on behalf reversal by an increasingly right-wing Supreme Court. of homeless veterans. A. Wallace Tashima, who had On this evening though, Reinhardt was not calling to spent part of his youth in a World War II internment express dismay about the latest opinion or speech of Chief camp, was kind enough to grant me an interview when Justice William H. Rehnquist or his comrade in arms, Jus- I knocked on his door on a Sunday morning in 1996. A tice Antonin Scalia — subjects he periodically commented day earlier, I had gotten a tip that President Bill Clinton on in speeches and in conversations with friends. This planned to nominate Tashima to become the first Japa- time, Reinhardt called to alert me — indeed to lobby me — nese American on a federal appeals court. One evening, to write about what he considered an outrageous attempt federal trial judge William Rea interrupted his dinner to censure or even remove from the bench veteran State of to confirm that he had issued a significant ruling in a California Court of Appeal Justice J. Anthony Kline, whose case involving the Rampart scandal concerning officers chambers were in San Francisco and who had become a of the Los Angeles Police Department — a call I had judge the same year as Reinhardt — 1980. to make because a colleague had inadvertently missed To provide even a glimmer of my relationship with a hearing. Another judge gave me too much credit for Judge Reinhardt, I have to provide some context about the role I played in helping secure the judge’s confirma- judges and the craft of journalism. On that hot Atlanta tion to the bench with a long article that raised ques- night, I had just marked my twentieth anniversary at the tions about scurrilous attacks that Republicans used in Times, after spending nearly a decade with three other an attempt to keep this smart, conscientious person off newspapers. Like any experienced reporter, I was accus- the bench. Arthur ­Alarcón, a conservative jurist invited tomed to being approached by all kinds of people rang- me to his chambers to give me an advance copy of a law ing from ordinary citizens to corporate public relations review article he wrote describing in detail why he had professionals who tried to persuade me to write stories for concluded that the California death penalty system had purposes ranging from the high minded to the craven. become dysfunctional. The attorney for another federal Although most readers and most of my colleagues judge attempted, unsuccessfully, to persuade federal thought judges were different from politicians — unap- prosecutors to investigate me after I wrote about an proachable — I thought it was my job to attempt to get unpublished decision taking the judge to task for mis- to know and understand the perspective of everyone I conduct. I am masking the identities of some of these wrote about — including judges. Although I started writ- individuals because they are still serving. ing about law full-time only after being a professional I met Reinhardt before he became a judge; he was the journalist for 20 years, I had spent time in courtrooms chief attorney for the Los Angeles County of Federation around the country writing about the Black Panthers, of Labor and I was covering local government. Rein- labor disputes, slumlords and even an anti-trust case pit- hardt was working with County Fed leader Bill Robert- ting quarterback Joe Kapp against the National Football son to bring the Raiders from Oakland to Los Angeles. League. I started writing about federal courts full time in While feasting on pastrami sandwiches and Dr. Brown’s 1989 and, by 1998, I knew a lot of judges. Cream soda from Langer’s delicatessen near downtown Most judges appreciated that I took them and their Los Angeles, my Times colleague Bill Boyarsky and I jobs seriously, that I read their decisions closely and sparred with Reinhardt and Robertson about whether marked them up before writing. Some liked me and there would be true economic benefits to the city from some didn’t; some periodically changed their minds having a pro football team. Reinhardt was smart and about me, depending, not surprisingly, on what I had determined. The Raiders came, won a Super Bowl and written recently. Several judges, including Reinhardt, eventually went back to Oakland. Later in 1980, Rein- went out of their way to be helpful to me, includ- hardt joined the Ninth Circuit. ing some who spoke to me confidentially. Here are When Reinhardt called that July night in 1998, he a few examples of my experiences. One federal trial was angry and had an agenda. He had learned from cschs newsletter · fall/winter 201 17 Kline, an appointee of Gov. Jerry Brown, that the of the charges and a letter he had written to the Com- California Commission on Judicial Performance had mission defending his actions after learning he was accused him of “willful misconduct” because of a dis- under investigation months earlier. I read the material senting opinion Kline had written the previous year. In in my hotel room that night and started doing telephone the dissent, Kline wrote that “as a matter of conscience” interviews the next morning. Legal ethics experts, other he could not adhere to a 1992 California Supreme Court judges and even the lawyer who was on the prevailing precedent, Neary v. Regents of University of California, side in the case in which Kline dissented all expressed that he considered “destructive of judicial institutions.” outrage at the Commission’s proposed action. NYU In Neary, the state’s high court approved a controver- Law School ethics professor Stephen Gillers said Kline sial practice known as stipulated reversal. That practice had simply taken “a public position of conscience.” U.C. permitted litigants, after a jury verdict, to make an out- Berkeley law professor Stephen Barnett said the Com- of-court settlement that wiped out an earlier judgment. mission simply had no evidence that Kline had acted Such reversals are controversial because, in effect, they with an improper purpose, the appropriate criterion for permit a wealthy litigant to buy his way out of adverse assessing judicial misconduct. By day’s end, I called my court rulings. editor to tell him I had a solid story that had to be writ- In his dissent, Kline said he understood that as ten and edited promptly so we could get it into the paper an intermediate level judge he was in almost all cir- by July 6, when the Commission was expected to make cumstances obliged to follow state Supreme Court the charges public. precedents. But Kline considered this a rare instance My story ran on page 3 of the Monday, July 6 edition warranting a departure from the norm because he said of the Times. The headline said the case “is expected such a reversal “converts the judgment of a court into to generate controversy” and it did. Within days, the a commodity that can be bought and sold.” Just four American Bar Association urged the Commission to years earlier, in 1994, a unanimous U.S. Supreme Court drop the charges. A state legislator introduced a bill decision, written by conservative Justice Antonin Scalia, that would bar the Commission from taking action barred the practice in the nation’s federal courts. against a judge because of one opinion. I wrote stories The California Commission had informed Kline of about those developments, too. The following spring, in the pending charges at the end of June and planned to a closed session, the Commission dropped the charges. I make the charges public on Monday, July 6. wrote about that development, too. I am not suggesting Normally, the Commission investigated charges of that my initial story and the first two follow-ups were conflict of interest, corruption and similar matters. the critical factor in the eventual outcome. But those The Commission had never before attempted to dis- stories put the Commission on the defensive and pre- cipline an appellate court judge for a written opinion, sented a narrative that was favorable to Kline’s position. according to legal experts I consulted within 24 hours I wrote more than 3,000 stories during my 30 years at of receiving Reinhardt’s call. the Times and I had not thought about the Kline contro- Reinhardt didn’t put it in precisely these words but he versy for years. Other than my late wife, Laurie Becklund, made it clear he hoped I would write a story that would a great journalist, and one other colleague, I never talked raise fundamental questions about whether a commis- about the genesis of that story. Reinhardt had done noth- sion, whose primary purpose had been to deal with cor- ing improper. He and Kline were friends, but Reinhardt ruption, was attempting to squelch a judge’s freedom of had no personal stake in the outcome, either financially speech and harm judicial independence. or otherwise. As a federal judge, he did not review Kline’s Reinhardt gave me Kline’s home number. I already rulings and Kline did not review his decisions. Reinhardt knew Kline, whom I met in 1969 when he was a Legal had no vote on the issue. He just had provided me a tip, Services lawyer in San Francisco and I was a young as many other anonymous sources had during my long, reporter for the Wall Street Journal, just months out of joyous career as a reporter. Keep in mind, after hearing law school. Kline was one of the key lawyers who had from Reinhardt, I had to report the story, get the facts, filed a federal lawsuit on behalf of tenants facing dis- call numerous people for comment and have the story placement because of a major redevelopment project subjected to rounds of editing, like all the stories I wrote that had the support of Mayor Joseph Alioto, big busi- for the Times. I didn’t just put stories in the paper on my ness, building trades unions and the major San Fran- own accord, nor did Reinhardt. cisco newspapers. I wrote a long story about the case. This situation was different from the one where U.S. Stanley Weigel, a courageous federal judge issued an District Judge Thomas Penfield Jackson during the gov- injunction against the project, paving the way for ernment’s antitrust trial against Microsoft in 2000 gave replacement housing for low-income tenants. two reporters background interviews saying he thought Kline would not comment on the merits of the Com- Microsoft’s witnesses, including CEO Bill Gates, lacked mission’s pending charges. But he provided me a copy credibility — actions leading to Jackson’s censure by

18 fall/winter 201 · cschs newsletter the D.C. Circuit for violating judicial ethics. And it dif- Most judges believe that their job is done once the case is fered from the situation where Justice Scalia declined over; Reinhardt believed his job wasn’t done until justice to recuse himself from a case involving Vice President prevailed. It’s hard not to admire such ardent zeal.” Dick Cheney, even though the two had gone hunting Several speakers at Reinhardt’s memorial service, during the pendency of that case. including Yale Law School Dean Heather Gerken and At Reinhardt’s memorial service, Kline spoke mov- her colleague Judith Resnik, both of whom served as ingly about their friendship and, in particular, their Reinhardt law clerks years ago, emphasized that Rein- conversations about the Holocaust. Afterward, I chatted hardt made a point of reminding his clerks that there with Kline at a reception. I tepidly brought up the story were no little cases — that to the litigants every case and asked if he thought it was okay for me to write about mattered, particularly powerless litigants. it now. He expressed no reservations. As I was working on this article, I read and reread Going to bat for Tony Kline was far from the most Reinhardt’s 2003 speech on “The Role of Social Justice in important action Steve Reinhardt took during his life, Judging Cases,” subsequently printed in the University and the stories I wrote about Kline’s case were far from of St. Thomas Law Journal. Reinhardt described the case the most significant I wrote about either man. But I tell of Arnulfo Gradilla, a laborer in a Southern California this story because I think it is emblematic of Reinhardt’s machine shop. Gradilla’s employer fired him after he left belief that as a judge he was always supposed to strive work for a few days to accompany and care for his wife, for justice. who had a serious heart condition, when she traveled At a 2003 conference honoring Judge Noonan, Rein- to central Mexico for her father’s funeral. Two of Rein- hardt said he and Noonan did “not always agree on hardt’s colleagues ruled that Gradilla was not entitled to cases, but, far more important, we have similar views leave under the California Family Rights Act, holding about the values that are central to how we do our job.” that the law does not require an employer to grant even He cited an article Noonan wrote criticizing lawyers the briefest leave to an employee who provides medical and judges who had become “shackled by bureaucratic care for a spouse who travels away from home for rea- rigidity.” Reinhardt added, “when lawyers and judges sons unrelated to her own medical treatment. adhere too rigidly to legal rules, they lose sight of the broader purposes for which those rules were created — “To me, judges without to do justice . . . . To me, judges without compassion compassion . . . have — and there are a fair number of them in our courts today — have simply chosen the wrong profession.” simply chosen the wrong In the aftermath of Reinhardt’s death, his long-time profession.” colleague Alex Kozinski, an appointee of President Justice Stephen Reinhardt, 2003 Ronald Reagan, also has praised Reinhardt’s approach of going beyond the bounds of what a federal judge nor- mally did. The two became known as “the odd couple” Reinhardt issued a blistering dissent: “This case of the Ninth Circuit. They became close friends despite exemplifies compassionless conservatism. The major- their frequent, occasionally vehement disagreements on ity reads the California Family Rights Act, a statute death penalty cases. designed to afford a minimal amount of humane and “What Reinhardt brought to the table,” Kozinski wrote, decent treatment to working people with families, as “was a passion for the law and, more particularly, for those if it were a rigid code intended to limit their rights . . . . unfortunates whom the law treated badly. He would use That a poor, hardworking, Hispanic man, struggling to his considerable talents to find a principled way around support his family by performing manual labor could adverse precedents and pull out a victory. And when the be fired by his employer under the circumstances of law was insufficient, Reinhardt would try to find lawful this case is almost unimaginable. That a court could extra-judicial means of achieving a just result. reach the decision the majority does here is even more “He did this, for example, in the case of Shirley Ree incomprehensible.” Smith, the grandmother unjustly convicted of killing her As I read Reinhardt’s account of the case, and then grandchild by ‘shaken baby’ syndrome, despite compel- the full opinion, l was embarrassed that I missed it and I ling evidence that the conviction was based on flawed regret that he did not implore me to write about it. I feel forensic evidence. After the U.S. Supreme Court sum- that way even though I doubt whether anything I wrote marily vacated the Ninth Circuit’s decision setting aside would have had a significant impact; the case eventu- her conviction (over a vigorous dissent by Justice Ruth ally settled. But I have no doubt about two things: there Bader Ginsburg), Reinhardt called his long-time friend are many Arnulfo Gradillas whose cases are worthy of and political ally, Jerry Brown, and urged him to grant attention and regrettably there are not many Stephen Smith clemency, which the governor eventually did. Reinhardts to stand up for them. ✯ cschs newsletter · fall/winter 201 19 2018 Student Writing Competition Winner Announced Winning author Alexandra Havrylyshyn (center) is congratulated by Chief Justice Tani Cantil-Sakauye (center left), Justice Kathryn Mickle Werdegar (left), who recently retired from the Court but remains on the Society’s Board of Directors, Society President George Abele (right), and Selma Moidel Smith (center right), who initiated and conducts the competition — on September 13, 2018. Photo published in the san francisco and los angeles editions of the daily journal on september 21, 2018

he California Supreme Court Historical slavery laws so as to favor liberty for certain enslaved indi- Society is pleased to announce the results of its viduals. Relying on McHenry’s personal and legal papers T2018 Selma Moidel Smith Law Student Writing (preserved at the University of California, Berkeley’s Ban- Competition in California Legal History. croft Library), this article argues that a commitment to The winner is Alexandra Havrylyshyn, who received the rule of law, rather than a clear commitment to ending her J.D. and a Ph.D. in Jurisprudence and Social Policy slavery, ultimately explains McHenry’s unpopular opin- in 2018 from the UC Berkeley School of Law, where she ions. In a context of heightened sectional tension over the is now a Robbins Postdoctoral Research Fellow. legality of slavery, McHenry departed Louisiana for Cali- Havrylyshyn receives a prize of $2,500 and publica- fornia, where he was called upon to help frame the state’s tion in the 2019 volume of the Society’s annual scholarly first constitution. At UC Berkeley, Havrylyshyn is cur- journal, California Legal History. Second and third place rently teaching a class for undergraduate freshmen stu- winners were not selected this year. dents on the topic of “Race, Gender, and Property Law.” Her winning paper is titled “How a California Set- The Society’s annual competition is open to all law tler Unsettled the Proslavery Legislature of Antebellum students. Papers must be written during law school Louisiana.” It is also a chapter of her doctoral disserta- enrollment and may address any aspect of legal his- tion which she is revising into a book, tentatively titled, tory dealing significantly with California, ranging Free for a Moment in France: How Enslaved Women and from the justices and decisions of the Supreme Court Girls Claimed Liberty in New Orleans (1835–1857). itself to local events of legal and historical importance, “How a California Settler Unsettled the Proslavery at any time from 1846 to the present. The students’ Legislature of Antebellum Louisiana” uncovers the little- papers are judged by a panel of legal historians and known history of Judge John McHenry. During his time law professors. The deadline for the next competition on the bench in Louisiana, McHenry interpreted pro­ is June 30, 2019. ✯

20 fall/winter 201 · cschs newsletter THE BOOKSHELF How Supreme Court Nominations Became a Spectacle By Mary Ziegler*

Laura Kalman judicial nominations, she argues, began not with Bork but much THE LONG REACH OF THE 1960s: earlier. In the 1960s, consensus LBJ, NIXON, AND THE MAKING OF THE that senators should not inter- CONTEMPORARY SUPREME COURT rogate nominees broke down. 488 pages Media scrutiny intensified, and $34.95 (hardcover), $14.39 (Kindle) senators homed in on nomi- New York: Oxford University Press, 2017 nees’ ethics and personal lives. Nominations failed because of very presidential election brings reminders the expected impact that a can- of how politicized Supreme Court nominations didate would have on the Court’s Ehave become. There is certainly no shortage of future jurisprudence. TheWarren ­ unseemly stories about politicians and the nation’s Court, known for its decisions on school prayer, school highest court. During the 2016 season, pundits specu- desegregation, vote reapportionment, and rights for lated that conservatives uneasy about Donald J. Trump’s criminal defendants, became the centerpiece of a politi- candidacy overcame their doubts because the next pres- cal debate about the future of the Court. ident would likely be able to fill several vacancies on the Kalman starts The Long Reach of the 1960s with the bench. Prior to Trump’s ascendancy, Senate Republi- presidency of Lyndon Johnson, a president who unwit- cans prevented Barack Obama’s final nominee, Merrick tingly ushered in a new era in Supreme Court nomi- Garland, from receiving a confirmation vote. nations. Throughout the book, Kalman makes savvy We often assume that these problems began with use of recently-released tapes from both the Nixon and the now-notorious 1987 nomination of Robert Bork, Johnson Administrations, making the reader part of the failed selection of Ronald Reagan. Bork was one many of the off-color conversations that unfolded in of the most outspoken proponents of originalism, an the White House. Johnson, she showed, assumed office interpretive theory based on the presumed intentions eager to make a mark on the Court. Following the suc- of the Constitution’s framers. In his academic writing, cessful nomination of Abe Fortas in 1965 as associate Bork had criticized well-known decisions, including justice, Johnson had a majority that would likely be Roe v. Wade. As important, when Reagan announced sympathetic to his Great Society reforms. But John F. his nomination, Bork seemed likely to hold the decid- Kennedy’s nomination of Arthur J. Goldberg in 1962 ing vote in a host of divisive cases. Progressive interest was the last to fit the model to which Johnson and his groups formed a coalition to block the nomination, and predecessors had become accustomed. those on either side spent record-breaking amounts of Thurgood Marshall, Johnson’s next nominee after money. Although Bork’s nomination failed, the story Fortas, experienced a very different kind of confirma- goes, his nomination forever changed the way the tion hearing. Kalman shows that in the summer of 1967, country handles Supreme Court appointments. The when Johnson got the chance to fill a second Supreme choice — and success — of a Supreme Court nominee Court vacancy, a few Southern senators vowed to make is one of the most closely-watched and hotly-contested Marshall’s nomination a referendum on the ideology of political events in modern American politics, and it the current Supreme Court majority. Marshall’s record seems that we have Robert Bork to thank. of bringing cases on behalf of the NAACP Legal Defense Laura Kalman’s richly-researched, thought-provok- Fund certainly did nothing to appeal to segregationists ing book, The Long Reach of the 1960s: LBJ, Nixon, and in the Senate, but their interrogation of Marshall went the Making of the Contemporary Supreme Court, tells beyond any of the nominee’s own experiences. Instead, a very different story. The ugly politicization of federal Marshall’s confirmation hearings put ideology center stage for the first time, and Southern senators worked * Mary Ziegler is the Stearns Weaver Miller Professor at Flor- to make the Warren Court, as Kalman puts it, “the ida State University College of Law. Her most recent book is bogeyman.” Beyond Abortion: Roe v. Wade and the Battle for Privacy (Har- Although Marshall joined the Court, other nomi- vard University Press, 2018). nees would not be so lucky. The Long Reach of the 1960s cschs newsletter · fall/winter 201 21 unearths deeper meaning in the disastrous 1968 nomi- us to arrive at the present historical moment. But The nation of Abe Fortas to be chief justice following Earl Long Reach of the 1960s compellingly proves that the Warren’s retirement. Because of Fortas’ role on the War- Supreme Court nomination hearings of the era still ren Court, his nomination as chief justice faced oppo- cast a long shadow today. The Warren Court remains sition from the start. Ethical questions that emerged a touchstone for debate about how the justices should during the hearing only made things worse. Congress (and should not) interpret the Constitution. But the took the unprecedented step of asking Fortas to tes- “Warren Court” we often discuss is far more radical tify before the Senate Judiciary Committee, and sena- than the reality many experienced decades ago. Kal- tors became frustrated at what they saw as his efforts man documents how the confirmation battles of the to evade questions about the cozy relationship that he 1960s helped to forge the image of the Warren Court maintained with the Johnson Administration while on that still sets the terms of debate about new Supreme the Court. Fortas’s nomination soon became a media Court nominees. spectacle, fueled by revelations that he had accepted Nor, Kalman writes, did the Bork nomination speaking fees from private business interests during chart a new course for Supreme Court nominations. talks that he gave at American University. Although Bork’s hearing was as contested and politi- Although Supreme Court hearings had once seemed cized as those of the 1960s, many of the nominees who a formality, it soon became clear that Fortas’s nomina- followed him, including those chosen by Republican tion was doomed. As Kalman demonstrates, Fortas’s and Democratic presidents, were confirmed with little failed nomination bore all the hallmarks of a new era of controversy or opposition. Supreme Court politics. The nominee’s ethics and per- Kalman’s study is especially timely given the pro- sonal life became a media preoccupation, and the politi- found controversy sparked by the nomination hear- cization of the process seemed almost natural. ings of Justice Brett Kavanaugh. Dr. Christine Blasey When Richard Nixon took office in 1969, Supreme Ford, a former acquaintance, accused Kavanaugh of Court nominations became no less political. In 1969, attempting to sexually assault her while the two were Nixon successfully nominated Warren Burger, a in high school. Additional accusations followed, along critic of the Warren Court, to replace Earl Warren as with an FBI investigation and an extraordinary hear- chief justice. But any honeymoon for Nixon’s nomi- ing at which Kavanaugh accused Democratic senators nees was short-lived. When Nixon nominated Judge of orchestrating a political “hit.” The Kavanaugh hear- Clement Furman Haynsworth, Jr. to fill a Supreme ings struck some as unprecedented. Kalman’s book, Court vacancy, the president’s selection seemed rela- however, shows us that the partisan rancor and high- tively uncontroversial. Haynsworth was a Southerner, stakes drama that characterized those hearings have improving the odds of his confirmation, and he was a roots that reach back decades. moderate, which made him more attractive to liber- Kalman’s book plunges readers into the strategy als. However, civil-rights and union groups mobilized discussions and inner thoughts of those who lived to defeat Farnsworth. Although his record alone did through the transformation she studies. The charac- not seal his fate, opponents dug up ethical problems ters in her story, both familiar and unfamiliar, jump involving Farnsworth’s part ownership of a vending off the page. While The Long History of the 1960s pro- machine company and defeated the nomination. vides a much-needed explanation of the evolution of Nixon’s next choice, G. Harrold Carswell, fared no our own confirmation battles, Kalman never loses better. Carswell came under fire for his previous sup- sight of the humanity of the politicians, judges, and port for segregation, his spotty record on women’s reporters she studies. Ultimately, Kalman shows that rights, and his mediocrity as a jurist. That Supreme there was nothing preordained about how Supreme Court seat would remain vacant for more than 390 Court nominations changed before. And as much as days before Nixon would successfully nominate Harry it may seem that nominations will inevitably become Blackmun. Nixon continued to flounder, and it was a more political, the story Kalman tells reminds us that stroke of luck that his 1971 nominees, Lewis Powell and Supreme Court selections have always reflected the William Rehnquist, succeeded. political exigencies of a particular moment in time. Kalman steers clear of arguing that the transforma- The nature of the Supreme Court battles we know now tions of the Johnson and Nixon years directly caused could easily change again. ✯

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How the California Supreme Court Judicial History on Display . . . . . 14 Saved Dodger Stadium Jerald Podair ...... 2 Appreciations Stephen R. Reinhardt In Conversation with HENRY WEINSTEIN ...... 16 Justice Kathryn Werdegar MOLLY SELVIN ...... 7 2018 Student Writing Competition . . 20 A Second Look at How Supreme Court Nominations A “Manifestly Unfair” Bar Examination Became a Spectacle Kyle Graham ...... 9 Mary Ziegler ...... 21

table of contents California’s Reporter of Decisions. . . 13 Membership Donors 2017–2018 . . . 23

On the Cover: Aerial view (ca. 1980) showing a packed Dodger Stadium. Downtown Los Angeles is in the background. Photo Courtesy L.A. Public Library, Herald Examiner Collection