Support for the Justices

Because of the vagaries of the law covering the California Supreme Court, six of the court’s seven justices face confirmation votes on the Nov. 4 ballot. Voters will be asked to say yes or no to retaining Chief Justice Rose Elizabeth Bird and Associate Justices Joseph R. Grodin, Malcolm M. Lucas, Stanley Mosk, Edward A. Panelli and Cruz Reynoso. These are people of varied backgrounds and varied judicial philosophies who have grappled with the wide spectrum of issues that come before the state’s highest court. For the good of the state and the preservation of the judiciary, we urge that all six be retained.

Much has been written and spoken about this election, particularly about Bird and, to a lesser extent, about Grodin and Reynoso. Much of the current controversy has focused on their voting records in death penalty cases. They have repeatedly reversed death sentences because of errors they found in the records in the courts below. In doing so, they have applied the law as they understand it even though it has meant voting against the political will of the majority of the electorate. But to turn this election into a referendum on the death penalty is to subvert what American courts are supposed to do and weaken the third branch of government.

The judiciary is the stabilizing force in the American system of government. The political branches--the executive and the legislature--are beholden to the will of the people and quickly respond to it. They are the branches of the majority, and they bend to accommodate the majority’s wishes.

But the courts are not so easily swayed, and they shouldn’t be. They are the true conservative branch of the government in the best sense of the word. They are the branch that prevents the majority from trampling on the minority, a crucial function whose value is always hard for the majority to appreciate. The current United States Supreme Court, whose members serve for life, contains the appointees of six different presidents. We do not agree with many of their decisions, but we recognize the value of having an institution of such historical depth that can serve as a check on the political process. Granted, the courts can be anti-majoritarian, but they are not anti-democratic.

The cases that reach the highest court in a judicial system are difficult cases indeed. Easy cases are settled in the lower courts, and it should not be surprising that different judges can see things differently and come to different conclusions about where justice lies. Original thinking in the legal process should be welcomed, not shunned. That is how law develops.

The members of the highest courts in state and federal judiciaries should be able to seek and enforce justice even when it is unpopular, as justice sometimes is. They should not have to suffer the wrath of the electorate for doing so. The state Supreme Court is not the Legislature, and it is a fundamental mistake to turn the justices into legislators because the voters disagree with them. We ourselves have some serious reservations about Bird’s performance as chief justice, but we do not think they warrant her removal, just as we did not oppose the elevation of William H. Rehnquist to be chief justice of the United States although we had serious reservations about his judicial record.

Before you cast your ballot against any of the six sitting justices, think of the day when you may be in the minority, and remember that you will want protection from the majority’s might. The ability of the court to provide that protection will be at stake on Nov. 4. Vote yes for Bird, Grodin, Lucas, Mosk, Panelli and Reynoso.