The Real Losers

The retirement of Justice Otto M. Kaus from the California Supreme Court puts into sharp focus the threat to the institution of the court inherent in the political campaign to unseat Chief Justice Rose Elizabeth Bird. In a candid and outspoken interview, Kaus explained that part of the reason he is retiring is that California’s system of requiring jurists to face reconfirmation votes makes it necessary for judges to weigh the politics of their deliberations. “I concluded, frankly, that it is very, very difficult to reconcile the appellate process with the necessity of facing a retention election,” he said.

Though Kaus would not have had to face the voters next year, Bird and several of her colleagues will, and they have been targeted for removal by conservative groups unhappy with the court’s decisions. These efforts are shortsighted. Although conservatives might succeed in putting on the bench judges with views closer to their own, they would do so at the cost of severely damaging the court itself.

The judiciary functions best when appellate justices are able to deliberate on deep legal and philosophical matters free of political pressure. The Supreme Court is not intended to be a legislature, responsive to shifting political forces. That is what the Legislature is for.

In order to be free to protect the rights of minorities and of individuals against the passions of the majority, justices must be detached--as they are in the federal judiciary, where judges have lifetime tenure. Like some other populist “reforms” that were intended to keep power in the hands of the people, California’s reconfirmation system is now being used for harmful purposes for which it was never meant. Justices should be removed from office only for gross misconduct, not because the majority disagrees with their decisions.

It is especially unfortunate that the first justice to fall to the political atmosphere surrounding the court is Kaus, who has been a distinguished judge since Gov. Edmund G. (Pat) Brown Sr. named him to the trial bench in 1961. Since Gov. Edmund G. (Jerry) Brown Jr. elevated Kaus from the Court of Appeal to the Supreme Court in 1981, his opinions have been among the court’s most scholarly and thoughtful. His has been a voice of reason and moderation.

Everyone should heed the warning inherent in Kaus’ statements on the danger of reconfirmation votes. The anti-Bird movement seeks to destroy the concept of an independent judiciary. Kaus’ retirement shows that if Bird is removed next year, the real losers will be the court--and the people.