Kaus Urges Reelection of Embattled Court Justices

Rejection of state Supreme Court justices on the Nov. 4 ballot could lead court members seeking retention in future elections to subconsciously fashion their decisions to please the voters, former Justice Otto M. Kaus has warned.

“Obviously, justices are going to write (opinions) with the election in mind--and that’s not the kind of system we want,” he said.

Kaus said that he himself may have been influenced subconsciously by an impending election when he voted to uphold a popular anti-crime initiative in 1982.

In his first formal remarks on the current campaign, Kaus, a widely respected judicial moderate who retired from the court last year, strongly urged confirmation of all six justices on the ballot.

“The future of the California Supreme Court is very much in the balance in the coming election,” he said here Friday night.

Rejection of high court members could lead California into a series of “combative” retention elections every four years, with “governors running with a ticket of Supreme Court justices,” he said.

Kaus, who served four years on the court, stressed the danger of judges’ succumbing, even subconsciously, to election pressures as they issue court decisions.

He might have been so-influenced himself, he said, when, in facing a fall rention election he subsequently won, he voted with the majority in a 4-3 decision to uphold the constitutionality of Proposition 8, the Victims’ Bill of Rights passed by the voters a few months earlier.

“Nobody suggests any of the justices--or potential justices--are going to be so small-minded that they will consciously bend their views . . . but it just isn’t that simple,” he said.

“I decided the (Proposition 8) case the way I saw it,” he said. “But to this day, I don’t know to what extent I was subliminally motivated by the thing you could not forget--that it might do you some good politically to vote one way or the other.

“When you’re eating dinner with a gorilla, it’s hard to make small talk, even when he’s using the right knife and fork.”

Kaus’ remarks were made in a forum sponsored by the American Civil Liberties Union on the forthcoming election, in which three of the six justices on the ballot--Chief Justice Rose Elizabeth Bird and Justices Joseph R. Grodin and Cruz Reynoso--are drawing organized opposition.

Opposing Viewpoint

Another speaker, UC Berkeley Law Professor Stephen R. Barnett, expressed disagreement with Kaus, saying fears that voter rejection of high court members would undermine the independence of the judiciary were “overblown.”

Barnett, a frequent critic of the court, urged the defeat of Bird, saying her record showed her to be “willful, self-indulgent, tendentious and unrestrained.”

If Bird is confirmed, he said, it will virtually assure that a justice will have a kind of “de facto life-tenure . . . no matter how outrageously he or she has performed.”