Activism Returned in 1960s : Justices Once Avoided Heat of Politics

The California Supreme Court has never been entirely free of politics. Supreme Court justices have always had to stand for election, but for many years the prospect of facing the voters was not nearly as forbidding as it is today.

Since 1936, the justices were able to remain aloof from campaign activity and still achieve an unbroken string of victories at the polls.

The justices owed their good fortune to an electoral reform system, pioneered in California and eventually adopted in 19 other states, intended to insulate the judiciary from politics and to ensure the selection of highly qualified judges.

The reforms grew out of concerns during the early part of the century that judges, under pressure to be reelected, were pandering to the whims of voters and jeopardizing the independence of the judiciary.

According to judicial historian Dorothy W. Nelson, some Los Angeles judges “degenerated to the depths of the promoters of cigarette sales campaigns. One judge agreed to dispense ‘justice with mercy’ if reelected. However, the voters preferred the candidate offering ‘even-handed justice.’ Another candidate offered to conduct a ‘fair and friendly court’ if elected, but the voters turned him down for the judge offering to ‘save a life.’ ”

Constitutional Right

Court reformers sought a way to depoliticize the courts without depriving people of the right to vote for judges, a right conferred by the state Constitution and later championed by California’s most celebrated political reformer, Gov. Hiram Johnson.

A constitutional amendment passed in 1934 was aimed at ending political abuse in the selection of judges for appellate courts, including the state supreme court.

Under the system, people continue to vote for judges, but only after they have been appointed by the governor and confirmed by a commission on judicial qualifications. The judges then go before the voters in uncontested elections and can stand for reelection at the end of their terms.

By eliminating competitive races, reformers hoped to eliminate the most unseemly aspects of court politics: judicial rivals making outlandish promises and rendering improper opinions in order to curry favor with the voters.

The system met its first electoral test in 1936, when voters overwhelmingly elected Douglas L. Edmonds after be was appointed to the court by Gov. Frank F. Merriam.

Following California’s example, 19 other states have adopted variations on the same process, known as the retention election system.

“The purpose of retention elections was to select highly qualified judges and to keep them in office for a long time,” said lawyer Susan B. Carbon, co-author of “Judicial Retention Elections in the United States,” the only book on the subject.

For many years, virtually all of the states with retention systems experienced stable courts; 32 lower court judges and one supreme court justice in the 20 states have been voted out of office since 1934, according to Carbon.

In California, electoral controversies were so rare that until the mid-1960s, supreme court justices rarely received less than 70% of the votes.

Beginning in the 1960s, however, public criticism of the judiciary nationwide began to grow as judges began to assume a more visible role in the nation’s policy making process. On widely publicized issues--busing, affirmative action, abortion and the death penalty--judges were making decisions that many people believed were altering society for the worse.

Many of the decisions led to criticism that the courts were making law rather than interpreting it, that judges in many places had usurped the role of legislators and had grown obsessed with their own political agendas.

‘New Legal Trends’

Legal scholars, sympathetic to the courts, responded that the judges were following a time-honored judicial tradition, shaping the law to fit new conditions and new values in a rapidly changing society.

“In California the (supreme) court has been a more activist or liberal court than many other states,” said Michael Wald, a Stanford University Law School professor. “It has been taking a leadership role in creating new legal trends, but that reflects the fact that social conditions often changed first in California.”

Nevertheless, since the 1960s, judges have been voted out of office in record numbers, even in states where retention systems bar contested elections.

Of the 33 judges defeated in uncontested elections since 1934, 32 were ousted after 1960. Many were defeated because voters found them to be “too lenient, permissive or liberal,” according to the authors of “Judicial Retention Elections in the United States.”

In California, hostility toward the courts has not led to defeat for any judge running in a retention election, but elections for the state’s highest court have become very close. In 1978, the first time Bird stood for election, she won 51.7% of the votes. She needed to break 50% to stay in office.