It’s Not Wrong to Bash High Court : Governor Has Right and Duty to Tell Voters How He Feels

Gov. George Deukmejian has been harshly criticized for announcing how he intends to vote on the California Supreme Court justices who are on the ballot this November. He told us that he would vote against Justices Joseph R. Grodin and Cruz Reynoso but for Justices Malcolm M. Lucas and Edward A. Panelli (scarcely surprising, since he appointed them) and also for Justice Stanley Mosk. Much earlier he told the world that he would vote against Chief Justice Rose Elizabeth Bird, although he would not campaign against her--a distinction that some people may find hard to follow.

For saying that, and particularly that he would vote against some of the justices, the governor has been read some very high-minded sermons about the separation of powers and the fundamental principles of our system of government--especially the independence of the judiciary.

Bosh.

There was nothing in the least immoral or unethical, much less un-American, in the governor’s quite-restrained announcement. Bashing high-court judges is, if anything, an American tradition for our executive branch. Thomas Jefferson thought John Marshall a closet monarchist and tried (happily, unsuccessfully) to impeach him; Jefferson’s view of Marshall was shared by Andrew Jackson (remember “John Marshall has made his decree. Now let him enforce it”). Abraham Lincoln ran for President against the court’s Dred Scott decision. Franklin D. Roosevelt thought that his election in 1936 gave him a mandate to pack the court. And today President Reagan tells us perhaps a little too often of his distaste for the court’s decisions concerning school prayer and abortion.

Furthermore, and more important to Californians today, we expect our elected officials (and candidates) to give us the benefit of their views on the issues that we voters will have to confront in the voting booth. The governor was under a lot of pressure from all sides to tell how he thinks we should vote on all the initiatives and other measures on the ballot--and he has done so. Those of us who think that the Gann initiative (Proposition 61) would be a disaster for the state were very pleased to learn that the governor shared our views. Indeed, his Democratic opponents worked hard to get enough signatures for a toxics initiative on this November’s ballot precisely because they anticipated that the governor would oppose it (as he did), thereby giving emphasis to an issue that they thought would favor Los Angeles Mayor Tom Bradley.

The justices’ names are on the ballot because the state Constitution puts them there. Some may not like that, but since the founding of the state our judges have held office for limited terms and appear on the ballot periodically. And California is not unique; all but a very few states make their justices stand for reelection. The people of California want help in knowing how they should vote on this as well as other issues. If the governor thinks that some of the judges should not be elected, it is entirely fitting and appropriate that he tell us so. And tell us why.

Why do we want high government officials to do this? Because, presumably, it is the business of governors to lead, governors (and candidates for governor) should be more knowledgeable than most of us, and certainly Deukmejian is well qualified to speak. He is a lawyer, he was attorney general and he ought to have thought about these matters.

This is not to say that the governor’s statement on the justices was a model of what it might or should have been. His press release spoke only of the death penalty, which to my taste puts undue emphasis on an already grossly overblown aspect of a much more complicated issue. He did not, as I think he should have, help voters figure out what standard they should apply to judges. In particular I wish he had said that judges should not be voted out because the voter disagrees with them on one or even several issues, that a negative vote should be cast only if the voter is persuaded that the judge is so far committed to a position or cause that he or she is incapable of viewing cases involving those issues impartially.

The governor did not do that. It was a golden opportunity to educate the voters, but it was totally missed. For this he could and should have been faulted.

For those who calculate only the effect on votes, the statement was also bad politics. The governor came out looking simply greedy. The shallowness of his explanation for why he was going to vote against some of the judges gave substance to the charge that his motive was simply to gain more appointments for himself. If his announcement has any effect in the end, it will probably be to benefit Bird, Grodin and Reynoso. More likely it will make no difference at all.

Then, yes, the announcement was in bad taste and counterproductive. But, no, it was not unethical, unprincipled or an attack on the fundamental structure of our system of government.

It would be a good thing for all, but mostly for the people of California, if the rhetoric on the justices got toned down six notches. Whether all or none of the justices win, the Republic will survive. Our liberties are not imperiled. It insults the voters to tell them that foundations of the American way of justice depend on how they vote.

In short, George Deukmejian is not a Hitler about to burn the Reichstag; no more is Rose Bird a Robespierre about to set out on a reign of terror. They are both highly motivated public servants with solid records of mediocrity behind them.