Justice Grodin’s Fair-Weather Friend : Governor’s Flip-Flop Risks a Fine Jurist, an Independent Court

The retention election for Supreme Court Justice Joseph R. Grodin presents an opportunity for the people to uphold an American principle that is beyond partisanship.

Citizens of other countries, accustomed to autocratic rule, often are surprised by our separation of powers and tradition of judicial independence. In negotiating a resolution of the Iranian hostage crisis, one of our most difficult tasks was to convince the Iranians that the President does not have absolute power and that an independent judiciary would have to approve any settlement that we might reach. More recently I spent a week in Austria explaining the American constitutional system to 60 young leaders from 22 countries, some from behind the Iron Curtain, some from the Middle East. They were amazed by the concept that our courts determine whether a law or execution action is repugnant to the Constitution.

The genius of our constitutional separation of powers is not its efficiency but its safety--its assurance that through checks and balances the executive cannot wield total power. An independent judiciary is one way we distinguish ourselves from societies like Iran that have proved vulnerable to despotic rule.

California’s impending Supreme Court retention election will test the principle of judicial independence at the state level. Our state Constitution permits the people to vote on their judges, a right that surely recognizes that citizens can evaluate whether incumbents have been faithful to their responsibilities. But the voters’ right carries its own responsibility: to retain judges who have maintained their oaths and faithfully carried out their duties.

Gov. George Deukmejian’s attack on Justice Grodin encourages a disregard of this responsibility and represents a threat to judicial independence in California. He seems now, in contrast to his earlier views, to be judging Grodin by the wrong standards.

There can be no dispute about Grodin’s intellect and integrity. Even those who might be expected to criticize his views join in praise of the intellectual prowess of this Fulbright scholar, Yale Law School honors graduate, successful lawyer and law professor. A 1981 profile quoted a California deputy attorney general: “Intellectually, he brings everything I’d ever want to see in an appellate judge. Generally speaking, you can’t really ask for more in intellectual capacity, preparation and mature thought.”

At that time, the attorney general was George Deukmejian, who evidently shared his deputy’s assessment. As a member of the state Commission on Judicial Appointments, Deukmejian joined his fellow commissioners in unanimously endorsing Grodin’s fitness on three separate occasions: when Grodin was nominated to the Court of Appeal, later for presiding judge and finally for the Supreme Court.

When Grodin’s Supreme Court appointment was confirmed, in 1982, Deukmejian was governor-elect. In casting his vote, Deukmejian said: “Even though we have strong philosophical differences, from a careful review of the decisions he has written I am satisfied that he has decided those cases in a fair manner.”

What caused the governor to change his mind? Apparently it was Grodin’s votes in death-penalty cases that made the difference. The governor’s purpose seems all too apparent in his remark last March that “it would help a lot” if Grodin would begin to affirm death sentences. This suggests that the justice should cast aside his careful judicial role and reach the governor’s desired result by whatever route.

A look at Grodin’s record in these cases shows how extreme are the governor’s views. In the 41 capital cases in Grodin has participated, he has voted to affirm in some cases, for reversal and a new trial in others, and to affirm with retrial of the penalty questions in yet others. In these votes, he has been joined by varying coalitions of his colleagues, ranging from Chief Justice Rose Elizabeth Bird to Justice Malcolm Lucas, the governor’s first appointee to the court.

For example, early this year Grodin cast a decisive fourth vote--joining Justices Lucas, Stanley Mosk, and Edward A. Panelli--to require rehearings in three cases in which death sentences previously had been overturned by the court. This is not the action of an ideologue but that of a justice trying his best to balance his obligation to enforce the death penalty with the need to ensure fair trials.

Taken as a whole, Grodin’s judicial opinions consistently disclosed careful, scholarly reflection, as well as frankness about the responsibilities and limits of the judicial function.

This perception parallels the findings of a recent tabulation of the Supreme Court’s voting patterns. It showed that over the past two years Grodin’s votes most often coincided not with any of the other five justices who are on the ballot this year but rather with recently retired Justice Otto M. Kaus, who was widely recognized as the court’s preeminent centrist and independent thinker.

The governor’s shift in position on Grodin says more about gubernatorial ambition than it does about Grodin’s judicial performance. If the governor can defeat two justices this year, he will be able to appoint their successors and will have named a majority of the California Supreme Court. While the governor’s appointees to date have been beyond reproach, his statements about Justice Grodin indicate that he would seek to appoint replacements for Grodin and others who would produce the results that he wants.

No court dismantled and reconstituted in this manner could confidentially be expected to be fully independent. If the voters heed the governor’s call, society may lose far more than a fine jurist.