The Chance to Make a Great Appointment : Wilson could leave a distinguished legacy to California

The decision of Justice Allen E. Broussard to retire this year from the state Supreme Court will allow Gov. Pete Wilson to make a thoughtful and influential appointment of enduring value.

The Republican governor cannot be expected to appoint a liberal like Broussard. But without violating his principles, Wilson can pick an independent jurist to contribute vigorous intellectual diversity.

THE TRACK RECORD: Even this early in his stint as governor, Wilson has proven that he has no use for rigid, ideological zealots. He has made several thoughtful and non-ideologicial appointments. His education adviser, Maureen DiMarco, for example, has deep roots in the Democratic Party. This important judicial vacancy will require a solid and fair-minded judge who is qualified based on his or her intellect, experience, character, temperament, collegiality and ability to deliberate on legal and philosophical matters without catering to political pressures.

The majority on the present court is decidedly conservative; Broussard’s lone liberal compatriot is Stanley Mosk. Former Gov. George Deukmejian determined that course when he appointed five conservative judges: Edward A. Panelli, Marvin R. Baxter, Joyce Luther Kennard, Armand Arabian and Malcolm M. Lucas (whom the governor elevated to chief justice).

Broussard is considered the most liberal justice and the leading dissenter of the conservative-dominated high court. His sharp, vigorous and at times eloquent dissents test the arguments of the majority and provide a useful intellectual balance that must be preserved.

The black jurist is also the only the minority on the state’s high court. When Gov. Edmund G. (Jerry) Brown Jr. appointed Broussard nearly 10 years ago, two right-wing groups demeaned the process when they tried unsuccessfully to make Broussard’s race an issue.

THE PROBLEM NOW: His upcoming retirement has prompted appeals to Wilson to name a judge who is also representative of California’s growing diversity. While diversity is legitimately a factor in the governor’s decision, there should be no unofficial black or minority seat on the bench. There should be, however, jurists who are keenly aware of the new facts of life in this changing state. Such knowledge and experience are essential as the justices arbitrate between the majority and the minority, and arrive at interpretations of law based on a balance between old precedents and new realities.

The California Supreme Court was once widely regarded as the nation’s most respected state court. Twenty-five years ago its decisions broke legal ground, and were often adopted in many cases by the U. S. Supreme Court. It is against that historical backdrop that Wilson will make his important choice.