Governor Is Right to Oppose Justices : His Effort to Un-Pack the Court Plays Straight With Voters

The 1986 gubernatorial candidates have three options regarding November’s California Supreme Court elections. They can, as Los Angeles Mayor Tom Bradley has done, refuse to comment on any of the candidates. They can comment on some, but not all; given political realities, we can call this the Rose Bird option. Or they can announce their positions on all the justices on the ballot, as Gov. George Deukmejian has done.

The governor’s actions drew a number of criticisms, including charges that his position is one of pure self-interest, motivated by a desire to “pack the court” after several vacancies have been created. Such allegations should be attributed to faulty analysis, if not partisan fervor.

The hear-see-speak-no-evil posture adopted by Bradley does possess the superficial appeal of respect for the court as an institution. However, further inspection reveals a lack of respect for the electorate’s concern with its judiciary.

Since all questions of government operation virtually are assured of eventually having their day in court, a gubernatorial candidate’s stance on the issues has to include his opinion concerning the proper role of the court--which all too often has the last say on how interests are to be balanced, resources allocated and rights determined.

Deukmejian, it is true, could have pointed to his approximately 300 appointments to the bench to demonstrate his assessment of the qualities that go to make up a good judge. Unfortunately, few voters are aware of judicial behavior at levels below that of the Supreme Court. The governor cannot be faulted for paying heed to the fact that the justices of the Supreme Court are best suited as exemplars of what a gubernatorial candidate believes to be proper or improper models of judicial behavior.

Should Deukmejian have taken the middle ground and exercised the Bird option? There are advantages to such a course: Opposition to Chief Justice Rose Elizabeth Bird is politically a no-loss position. She is the most radical of the present court’s majority of activist judges. Her positions tend to lack subtlety or ambiguity, which highlights their merits or flaws in the public mind. Finally, she seems to have engendered a pervasive public animosity that is almost a matter of personality, rather than policy, and is easy to tap for political capital. All those, however, are partisan advantages and have little, if anything, to do with principle and policy.

The governor chose instead not to encourage the myopic focus on Bird that has been encouraged by some candidates and the media. To do so would only mislead the public into believing that Bird is the only problem with the court. In truth she is effective in carrying out her social agenda only if she can enlist the support of three or more of her colleagues. Deukmejian also chose to avoid the politicization of the court that occurs when judicial elections are reduced to personality contests.

If these elections are to be more than personality contests, it is imperative that such comments be based on some neutral, objective, uniformly applied principles that are publicly announced. This is precisely what Deukmejian has done. And the standard that he employed was not opportunistically created or chosen; it is the standard that has guided him throughout his 24-year career in public service--a career in which he has been consistently opposed to judicial activism and adventurism.

Simply put, does a justice’s record demonstrate “impartiality” and “objectivity,” or the contrary disposition to substitute his or her wishes and values for those of the people “as expressed through the legislative process, the initiative process and the Constitution?” The records of Cruz Reynoso and Joseph R. Grodin, as measured by the governor against this standard, left him no choice but to decide to vote against them, as well as Bird, if he was to remain true to his principles of objectivity and impartiality.

As for those who cry that Deukmejian is plotting to “pack the court” with ideologues, where were they when Jerry Brown took advantage of an unprecedented six vacancies to fill the court with justices opposed to capital punishment and dedicated to judicial social engineering?

The real concern of these critics is that Deukmejian will un-pack our present Jerry-built court, particularly since none of them can point to any particular bias or ideology adhered to by the hundreds of Deukmejian appointees already on the bench. Their only apparent unifying belief is in judicial restraint--a virtue that even the most adroit political rhetorician is incapable of converting to a vice.

The governor, throughout his present campaign, has informed the public of his views on the issues. In addressing the Supreme Court issue he has been consistent in applying principles that have been a matter of public record for a quarter of a century. Thus he has provided the electorate with all the facts that they will need in assessing his candidacy once the voting-booth curtains are closed.

It is a very strange political vocabulary that labels full disclosure in democratic elections expedient and opportunistic--a vocabulary that must be condemned if the electoral process is to maintain its integrity.