A Justice on Justice

U. S. Supreme Court Justice Byron R. White came to California this week to revive a debate over the threat to an independent judiciary of judicial elections waged on the same rough ground as any fight for public office.

Thirty-nine other states, many to a lesser degree than California, give voters the right to pass judgment periodically on the way judges handle their work on the bench.

But none have seen the likes of California’s $10-million campaign focused on rulings in death-penalty cases that swept from office in 1986 three state Supreme Court justices, led by Chief Justice Rose Elizabeth Bird.

White’s questions in a speech to the American Bar Assn. convention in San Francisco were not new to Californians, nor did he have pat answers. But it was a valuable reminder to Californians that the questions cannot be ignored.

“If the people are entitled to have the brand of justice to which they are entitled,” White said, “judges must have sufficient protection against political or other pressures that threaten to distort their judgment.”

If a judge were forced to choose between making an unpopular decision on the merits and surviving the next election, he said, constitutional protection could be seriously eroded. And what, he asked, is the public to make of judges raising the large sums of money that television-oriented campaigns demand? “What obligations have been incurred or promises made?”

These and other factors pose serious problems that deserve “the attention of all thinking people, especially lawyers,” he told the lawyers.

White did not argue for the federal approach, in which judges are insulated by lifetime appointments from pressures that have nothing to do with constitutional law. What he seemed to say is that the question is not whether state judges should be required to pass muster with the electorate but how the muster should be constructed. Is there a framework for elections that will balance responsiveness to voters and independence of them?

All thinking Californians should accept White’s speech for what it clearly was: a challenge to press the debate until it produces answers, and to do so before serious damage is done to the rule of law.