A Judicial Balance of Power vs. Duty

It is a familiar truism that we must distinguish power from obligation when we decide how well public officials have performed the duties of their offices.

This distinction seems to have eluded both Chief Justice Rose Elizabeth Bird and Gov. George Deukmejian. They don’t seem to realize that the relatively unchecked powers afforded by their respective offices are not the yardstick by which they should measure the obligations attached to such offices. In those areas of decision-making that necessarily lack any political checks, the only restraint possible is self-restraint, a political virtue undervalued by both the chief justice and the governor.

Consider first the office of chief justice. A common bit of folk wisdom about judging, often attributed to the former U.S. Supreme Court Justice Charles Evans Hughes, is that “the law is what the judges say it is.” As a description of the power possessed by judges on our highest courts, this is accurate enough. Given the degree to which we value having an independent judiciary, it is essential that judges have powers that are relatively unchecked by any political process.

This does not mean that all exercises of those powers are equally appropriate to the judicial role. As chief justice, Rose Bird has had considerable power to express her opposition to the death penalty by finding procedural errors in every death case that has come before her. Such power allows her to invent procedural errors in the manner in which death sentences are meted out, when her true objection is to there being any death sentence at all. The existence of such power hardly speaks to the obligations of her office. Whatever else judges are supposed to do, they are obligated to judge the merits of the issues before them. Such judging does not take place when they use those issues as a mere pretext for imposing views that they dare not express openly.

Governors, too, have obligations not measured by their powers. George Deukmejian unfortunately exhibits a similar lack of self-restraint. Governors by and large have the power to use judicial appointments as a means to perpetuate their political views for a time considerably beyond their terms in office. At the federal level, President Reagan’s ideological purification program for federal judges shows just how much power a dedicated executive branch can possess in this regard.

Deukmejian’s recent broadside against Associate Justices Cruz Reynoso and Joseph R. Grodin shows a similar desire to exercise an unchecked appointment power to the maximum extent possible. It is not credible that Deukmejian believes that Grodin, in particular, lacks the requisite judicial self-restraint. Therefore, Deukmejian’s opposition to all three of the remaining justices appointed by Jerry Brown can mean only that he seeks to create a California Supreme Court whose political ideology is more to his liking.

Unasked in such political calculations is the question of obligation: Should governors see part of their job as the perpetuation of their political views via the bench? Does this extend to creating additional appointment opportunities, even if that means unseating sitting justices on purely ideological grounds?

My own view is that governors should not seek to maximize their appointment opportunities in these ways, nor should they impose ideological purity tests for judicial candidates. We all are better served by having a diversity of political views represented on the bench, trusting the discipline of law to filter those political views through the self-restraint distinctive of the judicial role.

Both Bird and Deukmejian have treated judgeships as a kind of political office where the only restraint is that of power, not obligation. Bird exercises her office in this way, and Deukmejian seeks to remove and appoint justices on a similar basis.

As voters in a retention election we should do better. We could vote for or against certain justices on straight political grounds. Yet this would be to ignore our own obligations as voters.

True, California voters have the unchecked power to vote on judges in any way and on any basis that they choose. In a democracy there can and should be no checks on such power in voters. Yet the extent of our power in this regard is not the yardstick by which we should measure our obligation, anymore than it is for the chief justice or the governor. The values of judicial independence require that we not vote on judges as if they were ordinary politicians. We should vote judges out of office only when we think that they have stepped outside the judicial role.

If we are to do better than either our present governor or chief justice, we ought to exercise the self-restraint that makes a retention election different from an ordinary political contest. Such voter restraint should not save Chief Justice Bird, but it should prevent a wholesale dumping of liberal justices on purely ideological grounds. It is important in this election not only how we vote, but also on what grounds we vote. Future judges must know that they can be voted out of office only if they fail to exercise the self-restraint distinctive of that office, not because they render unpopular decisions.