Raw Politics in Store for the Courts : Abortion Issue May Bring Out the Worst in Judicial Elections

The U.S. Supreme Court’s new abortion ruling has perilous potential for our state judicial systems. Abortion translates into raw politics, the kind of politics that can wreak havoc with the practice of electing state judges.

Judicial elections are the rule in California and 31 other states. These elections take many different forms, ranging from contested races to retention elections in which the public simply votes “yes” or “no” for a judge. Unlike the security enjoyed by life-tenured federal judges, most state jurists are tested by the vote. In 1990 alone there will be judicial elections in some of the abortion “hotbed” states. For example, judges on the high courts of Arkansas, Illinois, Louisiana, Michigan, Minnesota, Missouri and Texas, among others, will be up for election or will retire.

State trial and appellate judges hear a variety of constitutional law claims. They can, for example, nullify almost any state law limiting access to abortions. If they invoke the federal Constitution to do so, then the Supreme Court may review their decision. If, however, they set such a state law aside under their own state constitution, then the ruling is immune from federal consideration unless some federal right is contravened.

Since 1970, state high courts have relied on their own constitutions in nearly 600 cases to safeguard rights left unprotected by the U.S. Supreme Court. Some state Supreme Courts, such as those in California, New Jersey and Massachusetts, have already upheld publicly funded abortions under their constitutions. This issue is up again in a case pending in the California Court of Appeal.

In Missouri, a state constitutional law issue remains to be resolved in the now- famous Webster case, in which a plurality of the U.S. Supreme Court retreated from the landmark 1973 Roe vs. Wade decision. Similarly, in Florida “pro-choice” forces have already filed a state constitutional lawsuit challenging an existing abortion restriction. Before the latest abortion controversy flared up, most of the time politics were kept out of judicial rulings and races. Of course, there have been some notable exceptions.

In 1986, for example, three members of the California high court were voted out of office. At that time, the death penalty was the flash-point issue. Last year, powerful “pro-business” forces placed four of their own on the Texas Supreme Court. Politics also played a big hand when, in 1984 and 1988, vitriolic “law and order” campaigns were unsuccessfully waged to unseat state supreme court Justices Hans A. Linde in Oregon and Shirley Abrahamson in Wisconsin.

While the state judicial election system has quite often managed to serve the warring masters of detached justice and popular democracy, the record of success is less impressive when highly divisive abortion-type issues arise. The passive virtues of judging--objectivity and respect for existing law--can vanish when hot single issues put a judge’s head on the electoral block. In such instances, a judge “cannot forget the fact” that there is “a crocodile in the bathtub,” observed retired California Supreme Court Justice Otto Kaus.

Last year, U.S. Supreme Court Chief Justice William H. Rehnquist, the author of the Webster plurality opinion, warned that state judges who wish to “experiment must be willing to assume the responsibility for doing so.” In the volatile abortion context, this so-called assumption of “responsibility” portends at least five things:

-- Timidity. Above all, this is what we can expect once the abortion question is thrown into the “tub” of state judicial elections. When judges are asked to pick between law and livelihood, justice becomes a farce.

-- Promises. Politicians, not judges, make promises. This elevated ideal is not likely to survive once abortion enters into the bloodstream of judicial elections. Cleverly coded abortion campaign slogans could become the norm. Results alone, not reasons, will count. Abortion promises will be demanded and offered, thus further eroding the solemn line between law and politics.

-- Partisan campaign financing. If money is the mother’s milk of politics, then expect abortion partisans to amass large campaign war chests for their favorite candidates. The judge whose views coincide with the strongest interest group will reap the dollars. It smacks of judicial bribery.

-- Litmus tests. When it comes to “evaluating” judicial records or a governor’s nominee for a state high court slot, abortion litmus tests may thrive. Those with unknown abortion records may fare best, until they too are grilled for their “up” or “down” views on abortion.

-- Case assignment-fixing: Once the abortion issue is fused with judicial elections, trial and appellate judges are likely to shun any opportunity to preside over an abortion case. It was this very kind of situation that faced the late Los Angeles Superior Court Judge Alfred Gitelson in 1970, when he courageously ruled on a controversial busing case just months before his election, which he later lost. With others unwilling to follow such an example, there will be great inside pressure not to assign such cases to certain judges or at least not to assign them to jurists facing imminent elections.

The basic abortion issue can bring out what is worst in state judicial elections. However one feels about abortion, it is an issue that must be dealt with at the national level. Until the U.S. Supreme Court fully comprehends this, the brush fire of abortion politics may char much that is cherished in our state judicial system.