Benched Justice : IN PURSUIT OF JUSTICE Reflections of a State Supreme Court Justice <i> by Joseph R. Grodin with a foreword by Justice William J. Brennan Jr. (University of California Press: $20; 200 pp.; 0-520-06654-5) </i>

Lawyers--and therefore, in our system, judges--are really rather dreary people. Books about lawyers are thus, by definition, not likely to excite interest unless they excite hatred, ridicule and contempt. Books by lawyers are likely to have even less sex appeal. Judicial autobiographies--or “My Life as a Judge”--have not been among our most exciting forms of literary expression.

I once made a living as a legal historian, writing about judges. I found judicial autobiographies, especially those from the 19th Century, highly revealing--normally unintentionally. They are certainly not regarded as literary masterpieces, quite rightly so. Judges, like university presidents, tend to have a rather pompous, authoritarian style.

It is, however, important to study judicial biographies. We think we can learn a great deal about poetry by learning about the poet; we similarly think we can learn a great deal about the interpretation of novels by studying the life--with its adequacies and inadequacies--of the novelist. For some reason, because we live with the wonderful myth that law is, somehow or other, a series of self-contained rules, we do not study the lives of the judges or the lives of lawyers who make it.

Justice Joseph R. Grodin has offered us an opportunity to remedy this lacuna. He has written an engaging book. It is not a book for everyone; it may be too technical for the layman and too colloquial for the lawyer. Yet it is a book that deserves study.

Justice Grodin began life as a lawyer, dabbled in being a law professor, served in the Jerry Brown Administration, found himself on the Court of Appeal in 1975, moved onto the Supreme Court of California, and was defeated with Chief Justice Rose Bird in 1986. With this background, it is scarcely surprising that the good Justice, who has now returned to teaching law, does a certain amount of special pleading. At the same time, Grodin has a good deal of common sense. He is obviously a person of integrity and decency, and while lawyers will prickle at the simplistic approach he takes to explaining the common law and at some of his forays into constitutional issues, they are issues that we all need to address in one form or another.

Like Gaul, “In Pursuit of Justice” is divided into three parts. The first, “Structure,” deals with the mechanics of becoming a judge and how the appeals process works in the state of California. It is both useful and reasonably entertaining. It will, however, disappoint the aficionados of the gossip column, since it does not “spill the beans” about how the Supreme Court of our state operates, or did operate, in certain crucial cases.

Some issues are brushed over. It is easy to write platitudes about the “legal explosion” that is going on in this country, but Grodin dismisses it rather casually. One would expect a society that did not have a tradition of autocratic government, or even a tradition--especially in the West--of a clearly delineated hierarchy, to resort to those concepts we know as law as a means of deciding disputes and of influencing decisions. Yet, as a society, we have to make some important choices here, and it would have been attractive to hear what Grodin thought.

At the same time, he explains the confirmation process of a judge in extraordinarily human terms, and as he looks back to his predecessors, he reminds us how recent the history of our state is. That, in itself, explains a great deal.

Perhaps inadvertently, Grodin also raises some interesting issues of jurisprudence. He challenges our intelligence by making us think about the “at will” concept of employment. He raises the jurisprudential--or constitutional--issue raised by the city of Azusa, which banned fortunetellers but not stockbrokers in its ordinance against psychics. The court had to decide whether fortunetelling was a fraud, while stock market prediction was a science. That is a distinction worthy of an intellectual tussle.

In part two, “Function,” we are taken on a quick tour of the common law. Again, the study is going to satisfy no one. The treatment of products liability might intrigue a high school civics class, but it might not. The foray into the criminal law again underlines the distorting effect of the death penalty--a distortion that has gone on since the 17th Century. Perhaps the most interesting part of what one might call the “action” part of the book concerns the initiative process.

As an immigrant to California, I found it difficult not to be intrigued by the initiative process. I realize that, in many ways, it is sacred to progressives and conservatives alike. Coming out of the muckraking period, it is a process much endorsed by those who stand at any particular time to benefit from it. Grodin takes the position that Magleby does, namely that too often the initiative process is not really giving “power to the people,” but is much more the “instrument of special interest groups.”

As Grodin looks at Proposition 14 in 1966 (the proposition that appeared to allow discrimination in housing and purported to forbid the Constitution ever to allow an anti-discrimination provision), and as he describes Proposition 8 in 1982 (the so-called Victim’s Bill of Rights), I can understand his concern about the process. I suspect that, if we had an initiative process at the Federal level, Brown vs. The Board of Education and the Miranda decisions might well have led to changes in the Constitution: not, for me anyway, an attractive prospect.

I have only had the privilege of voting once in California. I still have the old-fashioned notion that my delegates to Sacramento and Washington ought to be spending their time thinking through the logical way of balancing the public interest in everything from taxation to insurance. I certainly do not give up my right to criticize them, but I wonder if I should have the constant right to overrule them and second-guess them. Recalls and initiatives sound so wonderful, but just as judicial review can be misused and can undermine the legislature, is it not possible that the California initiative system has gone overboard? Are we really taking away the sense of responsibility from our legislators? Grodin does not go quite as far as I would go, but he raises some interesting and important issues and ones that we all ought to be discussing rather than being influenced by the manipulators and the media, who would have us believe that their paymasters know better than the legislature.

Indeed, throughout the book, Grodin raises some interesting questions about constitutional law and the constitutional process. His notions of “independent state grounds” in developing the California Constitution are attractive. Again, I would have wished he had raised some more basic issues about basic laws. When the Supreme Court has decided--as it did in 1972--that the death penalty constituted cruel and unusual punishment, did it really make sense to have that overruled by the initiative process?

The final part of the book, “Perspective and Evaluation,” is in its own way quite disappointing. There is a fascinating passage where Grodin, the liberal Democrat, finds himself surprisingly sympathetic to Judge Robert Bork in his public hearings in Washington. The personal reactions to the common-law and the election process, however, seem somewhat flawed.

The excursion is obviously necessary to get to the last chapter of the book, which deals with the election of judges. Parts of that chapter make good reading. There is a useful survey--historically somewhat inaccurate--about the growth of the elective process. When I was practicing law in England--and from the time I spent as a law teacher there--I frequently regretted that I did not have the ability to vote against certain judges. On the other hand, running for office and the role of the judiciary, one would have to admit, may not be entirely complementary.

As Grodin describes his own unsuccessful attempt at reelection, it is impossible not to feel sympathetic. He could defend his record. He could make no promises. Elections tend to be decided on promises. A French skeptic in the 19th Century noted that lawsuits existed to decide who could afford the better lawyer. Grodin takes the position--although he does not articulate it--that the judicial elections exist to see who has the deeper pocket to influence the electorate. It turned out that Chief Justice Rose Bird and Associate Justice Cruz Reynoso did not.

At the same time, the so-called commission system, which is now used increasingly in the other states, understandably has its detractors. Such commissions tend to be dominated by establishment lawyers who put in establishment judges. Much silliness is written about the establishment, but here is a worry that a judiciary like ours, which has to make important policy and even political decisions, should not be so insulated from public opinion that it is totally insensitive to it. It has to operate in a Cardozo-like atmosphere sensitive to public values.

Like the preview at the movies, my job is to titillate rather than satisfy. Grodin’s book is not a must; it is, however, a good read. I wish I felt clearer about the audience he intends to address, but I do have a feeling that those who care about the governance of this state should read it more than casually.