Warning by Justice White : Political Issues Seen as Threat to Judiciary

U.S. Supreme Court Justice Byron R. White warned Monday that politically charged state judicial elections are presenting “serious problems” that could undermine the independence of the judiciary.

“If the people are to have the brand of justice to which they are entitled, judges must have sufficient protection against political or other pressures that threaten to distort their judgment,” White said in a speech at the annual meeting of the American Bar Assn.

The justice did not comment directly on the bitter and costly fall election campaign in California that resulted in the unprecedented voter defeats of former Chief Justice Rose Elizabeth Bird and two other members of the state Supreme Court.

Subject to Approval

But, in raising concern that campaign considerations could improperly influence a judge’s decision-making, White quoted retired state Supreme Court Justice Otto M. Kaus’ remark that disregarding the political impact of a ruling at election time “would be like ignoring a crocodile in the bathtub.”

At present, 39 states hold judicial elections of some kind. In California, state Supreme Court and Court of Appeal justices are appointed by the governor, subject to approval by the state Judicial Appointments Commission. Later, justices go before the voters in periodic retention elections.

Last fall marked the first time in the current 52-year-old system that a justice has been voted out of office in California.

Under the federal system, Supreme Court justices and other judges are appointed by the President and confirmed by the Senate to lifetime jobs, subject only to impeachment and conviction.

White stopped short of calling for an end to judicial elections but noted that the debate over the best way to select judges now may be at a “high boil.”

“I shall not dwell on specifics, but it seems obvious that there are serious problems that deserve the attention of all thinking people, especially lawyers,” he told his audience.

Constitutional protections could be subject to “serious erosion” if a judge’s ruling could determine his fate at the next election, White said.

“And what does the public think of judges who must raise money and campaign as other candidates for political office?” he asked. “What obligations have been incurred or promises made?”

White said judges “should not feel compelled or be tempted” to decide cases in a way to please the person who appointed them, the people who support them or financial contributors to what have become “very costly” election campaigns.

The justice did not cite any state, but over $10 million was spent last fall in California in the election that resulted in the defeat of Bird and Justices Cruz Reynoso and Joseph R. Grodin.

White said the federal appointive and life-tenure system had avoided “the corrosive influence of undue pressures from the political branches or the public.” But there are other ways to preserve judicial independence, he added.

“Appointing or electing judges for sufficiently long terms would very likely serve the purpose, if at the same time elections, where they are involved, are subject to careful regulation that would minimize the risk of actual or seeming bias or favoritism by a successful candidate.”