The Wrong Message

The growing movement to deny reconfirmation to California Chief Justice Rose Elizabeth Bird is an assault on the judiciary and the judicial process. The effort by conservatives to remove Bird and other justices whom they regard as too liberal ignores the importance of an independent judiciary in the American form of government. The legislative and executive branches are intended to reflect the people’s wishes and respond to them, and they do. The judicial branch, on the other hand, reflects long-term political trends but is intended to be insulated from public opinion of the moment. In that way it can protect basic democratic rights against the majority’s might. Conservatives should welcome that institution, not seek to destroy it.

To argue about whether Bird and two of her state Supreme Court colleagues, Justices Cruz Reynoso and Joseph P. Grodin, are too soft on criminals--particularly murderers sentenced to the gas chamber--is to miss the point. Justices who apply the law and the Constitution fairly and honestly are doing what they are supposed to do, and they deserve public support even when some of their decisions are unpopular.

It is true that justices of the California Supreme Court do not have lifetime tenure as their counterparts in the federal judiciary do. California justices must face the voters periodically in a yes-or-no referendum that either grants them or denies them another 12 years on the bench. In the interest of a stable and independent judiciary, a justice should be voted out of office only for gross incompetence or unethical behavior. Removing justices because they fail a political test is a distortion of democracy.

The U.S. Constitution says that federal judges “shall hold their offices during good behavior.” In the Federalist Papers, Alexander Hamilton explained why that was proper. “The standard of good behavior for the continuance in office of the judicial magistry is certainly one of the most valuable of the modern improvements in the practice of government,” Hamilton wrote in 1788. “In a monarchy it is an excellent barrier to the despotism of the prince; in a republic it is a no less excellent barrier to the encroachments and oppressions of the representative body. And it is the best expedient which can be devised in any government to secure a steady, upright and impartial administration of the laws.” Furthermore, Hamilton wrote, permanency in office makes the judiciary “the citadel of the public justice and the public security.”

The Hamiltonian principles have served the American judiciary well for nearly two centuries. If the voters in 1986 dump Bird, Reynoso or Grodin, they will be sending a message to all future jurists that they will exercise appropriate judicial independence at the risk of their own jobs. Whether one agrees or disagrees with Rose Bird, it is the wrong message.