peculation continued to mount Thursday on a possible successor for the late California Supreme Court Justice Stanley Mosk, with a handful of federal judges named as likely front-runners -- including Nora Manella and Carlos Moreno of Los Angeles.
Meanwhile, appellate lawyers who recently argued before the court were left wondering whether the six remaining justices can muster the majority needed to issue an opinion in their cases -- or whether a second oral argument would be needed with Mosk's successor or a pro tem who could then cast a seventh, tie-breaking vote.
On Thursday, the court tried to resume business as usual. The six remaining justices issued their first opinions since Mosk died Tuesday at the age of 88. But clearly, Mosk's death still weighed heavily, with the court announcing that a public memorial service would be held Tuesday. The service is scheduled for 2 p.m. at the Wilshire Boulevard Temple, 3663 Wilshire Blvd., Los Angeles.
Attorneys and judges, including some who have the governor's ear, said that Gray Davis wants to appoint a highly qualified candidate -- but also one who will appeal to Democratic voters. That means a Hispanic or woman will likely have a good shot at the job.
And selecting someone from Southern California, and particularly from Los Angeles, is a priority. Richard Riordan, the outgoing Republican mayor, is mulling a run against Davis, and Hispanic and women voters will be crucial in staving off a Riordan challenge.
One insider suggested the choice could easily boil down to Manella and Moreno, both federal district court judges in Los Angeles.
"The deciding factor: who'll have more juice," the insider said.
Manella is a former U.S. attorney for Los Angeles. She also practiced corporate civil litigation with O'Melveny & Myers before being appointed to the municipal court and later being elevated to the superior court. She became a federal judge in 1999.
Manella was unavailable for comment Thursday.
"Nora would be at the top of anyone's list," said Sacramento attorney and former federal prosecutor William Portanova. He said she'd be a bulletproof nomination for Davis given her law enforcement background and her conservative views on crime.
Portanova says he expects Davis to make his decision in the next few days given that potential Democratic nominees have waited 16 years to get on the high court. "It would be shocking if they didn't have the top three ready and a decision within a week," he said.
But an insider close to Davis said the governor is more likely to take his time and ensure the candidate is in line with his ideological views. He also said Davis is embroiled in the energy crisis, and that is taking priority over all other matters.
A rising star on the federal bench, Manella has also been described as the exact opposite of former Chief Justice Rose Bird, who Portanova called Davis' "most brutal political memory."
Jonathan Shapiro, who worked with Manella when she was the U.S. attorney in Los Angeles, says she would make a fabulous Supreme Court justice. And although her current position includes not only life tenure, but a possible future on the 9th U.S. Circuit Court of Appeals, Shapiro says she would be tempted by an offer from Davis.
"She loves her current job, but she very much enjoyed the state system," he said of Manella's time on the Los Angeles Superior Court bench.
He adds that on a Central District bench, which isn't famous for its "elan," she brings the right amount of experience, temperament and intellect.
Another leading contender is Moreno. He was a deputy city attorney in Los Angeles for four years before going into private practice. He was appointed to the municipal court in Los Angeles in 1986, elevated to the superior court and became a federal district court judge in 1998. Moreno also could not be reached for comment Thursday.
Other names mentioned as possible contenders to succeed Mosk include federal judges Margaret Morrow, also in Los Angeles, and Susan Illston and Claudia Wilken in Northern California.
Though it's unclear whether a federal district court judge would take a seat on a state court, Boalt Hall School of Law Professor Stephen Barnett notes that it's not unprecedented. Malcolm Lucas, the former chief justice in California, had been a federal judge. And Learned Hand was a federal court judge when he campaigned to be a judge of the New York Court of Appeal. Of course, he lost. His consolation prize? A seat later on the U.S. Supreme Court.
"So it has happened," said Barnett. "If you're a trial judge for a while, you may hanker after the more intellectual life of writing appellate opinions and get tired of the hurly-burly of the trial courtroom."
Barnett has long advocated that California's governors look to candidates other than state court of appeal judges to fill open seats on the high court. He said appointing a federal district judge brings an outsider's perspective to the bench.
"Notably, Stanley Mosk was the only member of the court who had not been a court of appeal justice before being appointed," Barnett said.
Meanwhile, the justices proceeded with the business of the court Thursday. Cases with a clear majority are expected to have opinions issued within 90 days of oral argument, as usual. The justices will try to work out their differences on cases without a clear majority, Chief Justice Ronald George said. If that proves impossible, cases will have to be reargued, possibly with a pro tem serving as the seventh member of the court.
Nearly 40 cases are pending before the court. They include such high-profile cases as Merrill v. Navegar, S083466, the controversial case on whether a gunmaker can be held liable for a shooting rampage; and Conservatorship of Wendland, S087265, which involves a woman's request to withdraw life support from her incapacitated husband.
Frederick Ohlrich, the court's clerk, said Thursday that in such cases, a notice will be sent to attorneys indicating that a second round of oral argument will be needed.
Such a situation isn't without precedent. In the late 1980s, the court had been working on Foley v. Interactive Data Corp., 47 Cal.3d 654, relating to "wrongful discharge" for nearly two years. Then Rose Bird and two other liberals were voted off the court. The attorneys had to reargue the case before the new panel of justices.
"There's the old saying that for every argument, there's the one you prepare, the one you make and the one you wish you made," said one attorney with a case pending before the court. "Will this mean you get the opportunity to make the argument you wish you'd made?"
Another attorney noted that counsel's presentation to the court could be dramatically affected simply by knowing that the six current justices are split 3-3.
"You'd be arguing to an audience of one," he said.