Once Is Enough, Don’t Settle Judicial Scores

John Marshall, the third chief justice of the United States, warned that judicial elections would be “the greatest scourge an angry heaven ever inflicted upon an ungrateful and a sinning people.”

For Marshall, elections of judges threatened the principle of judicial independence, the linchpin of our judicial system.

California’s system of nonpartisan retention elections reflects the view--contrary to Marshall’s--that there is no inherent mischief in putting judges before the electorate. But recent events showed that the conduct of those elections can create the scourge of our courts that Marshall feared.

Last November, California voters defeated Chief Justice Rose Elizabeth Bird and Associate Justices Joseph Grodin and Cruz Reynoso. Many who are close to the law and the work of the state Supreme Court believe that the campaign to unseat the justices was a political charade that never dealt with their real qualifications.

The attack was planned and waged by professional politicians and political strategists, who gave us simplistic slogans and distortions of the court’s records.

More than $7 million was spent on the campaign against the justices. Never in this nation’s history has so much money been spent on a judicial campaign. It is doubtful that any judge in the United States could survive such an attack.

Judges are not and should not be politicians. In contrast to politicians, judges are ethically forbidden even to discuss issues that may come before them. They can promise only that they will not behave politically, that the law will be their only guide.

One consequence of the campaign against the justices is that many of their supporters are embittered. Well-informed Californians acquainted with the justices’ real record and qualifications are understandably incensed by these unconscionable attacks. They know that our judicial system will collapse when judges are afraid to make legally sound decisions that may offend powerful interests. They resent the damage that the campaign did to the system.

These strong currents of resentment raise disturbing implications for the future. Gov. George Deukmejian has promoted Malcom Lucas to be chief justice and has chosen John Arguelles, David Eagelson and Marcus Kaufman to fill the vacant seats. Like their predecessors, all are highly qualified jurists. But all four must face the voters in another retention election in 1990.

The question is whether the dismal events of 1986 will be repeated in 1990. For many, there will be a powerful temptation to retaliate, to even the score, for what they see as the outrage of 1986.

We must work to see that cooler heads prevail. The excesses of 1986 did not eliminate our need for independent, nonpolitical judges.

The new justices face an avalanche of work. They must be free to devote their full energies to the business of judging, independently, without fear of reprisal. We cannot allow them to become distracted by the need to raise vast sums of money and to campaign for survival.

As we look ahead we can regard the 1986 Supreme Court election as an aberration and a lesson. Removed now from the political circus in which that election was conducted, we can appreciate the incalculable damage that will befall our judicial system if we allow it to happen again. The principle of judicial independence is too important to lose. We must resist every effort to politicize our courts, whether it comes from the right or the left.

One scourge is enough.