A Case for Judicial Independence : New Court Has Obligation to Heal Wounds of ’86 Campaign

In the last six months California’s legal system has experienced a tumultuous and at times unfair judicial campaign, the removal by the voters of the state’s chief justice and two associate justices of the state Supreme Court, the appointment of a new chief justice and the nomination of three new associates. Gov. George Deukmejian now has appointed five of the seven justices on the court.

No Supreme Court can suffer such attacks and changes without causing people who care about it to question the future.

First, who are these new people? The three recent nominees--Judges John Arguelles, David Eagleson and Marcus Kaufman--now serve on the state Court of Appeal. The new chief justice, Malcolm Lucas, served on the U.S. District Court in Los Angeles before his nomination to the state Supreme Court. Justice Edward Panelli, appointed by Deukmejian to the court in 1984, also served on the state Court of Appeal. These judges, all with track records of hard work, are thought to be “conservative” in philosophy. Each has many years of productive experience on the bench, and each is, in different ways, clearly competent. And, while they are unknown to the general public, all are well respected by lawyers who have appeared before them.

Second, can anyone forecast how these judges will shape the future course of California law? Will they redo personal injury law to favor manufacturers over injured persons? Will they fashion new technical obstacles to public-interest litigation, denying some plaintiffs standing to bring suits or making it more difficult for plaintiffs to obtain attorneys’ fees? While on the U.S. District Court, Lucas once fashioned a new rule that required some criminal defendants to give information to the government before trial. Will he fashion more new rules that favor the prosecutors who campaigned so hard against his predecessor, Rose Elizabeth Bird? Arguelles has sp1869309294judges, but how will he vote in discrimination cases? Eagleson has always had a great interest in business, but will he always vote for an insurance company or developer? Kaufman was critical 1868963956convictions for technical reasons, but will he never throw out a bad criminal case?

There is a wonderful chemistry that can occur in the mind of any judge--an independence of intellect. It is the mark of a good judge. If history is our guide, when Deukmejian intimated to the electorate that he could appoint judges who would, robot-like, carry his political will into the judicial system he was probably in error. During his confirmation hearing last summer, U.S. Supreme Court Justice Antonin Scalia was described by most legal observers as firmly restrictive in the area of defendants’ rights in criminal cases. Five months after he was appointed, Scalia stunned the legal community by authoring an opinion in the case of Arizona vs. Hicks in which he upheld a criminal defendant’s right to have illegally seized evidence excluded from his trial. No one, not even the governor who appoints them, can tell the future or what the judges on the California Supreme Court will produce.

Third, did last November’s election permanently injure our state’s legal system? That remains to be seen. If this was the first in a series of judicial elections in which unopposed judges come under attack much like candidates in a political campaign, the system as we know it has changed utterly.

But this may not be true. The particular conditions that led to the recent intellectual bloodbath may not recur. As with any lynching, this episode may be followed by remorse and a renewed impulse to protect the court. Ironically, the supporters of Bird, Cruz Reynoso543256164as this writer hopes, we refrain from trying to defeat judges because of their conservative philosophy and adhere to the principle of judicial independence, which was urged strongly but unsuccessfully during the recent election.

Finally, what will guide the new judges? How will they decide real cases? To what drummer will they march? They cannot be guided by the disjointed, emotional and fractious debate that attended the recent election. Law is not decided by street rhetoric or political impulse, although regrettably it can be influenced by such tumult. Nor can the new judges be guided by the governor’s desires, for that would be a relinquishment of the essential constitutional principle of separation of powers.

The new judges’ experience, qualifications and competence all indicate that they will be guided by the law as they come to interpret it. If they are, in the historic tradition of American courts--and there is reason to believe that they will be--there will be days when Deukmejian is deeply disappointed in much the same ways as 17th-Century kings in England were by the decisions of judges who were defiantly inventing the common law.

The new justices are trustees of the law, and will have to bring to it a balance precisely because of the way the seats that they hold were vacated. Their job is not only to act as the final oracle announcing California’s law. Because of the political lightning that hit the court last year, they must also see their role as a healing one within the legal community and the state’s population. In this effort we wish them well.