Judicial Elections

Having practiced criminal and constitutional law as both prosecutor and defense attorney for 15 years, and having served as a judicial law clerk before that, I must both agree and disagree with Frank Wheat’s observations about judicial elections in this state (Commentary, Jan. 25). In an earlier era, the judiciary pandered to the left wing; now it panders to the right; the evils associated with both are the same. Judges are generally running for reelection from the first day on the job.

The solution is easy; change the Constitution so that trial judges do not have reelectability. Have judges serve for a determinate and limited term, maybe two years or so, as a public service, knowing that they will return to law practice at the end of that service.

That would prevent them from victimizing or rewarding any group at the expense of another, because they would be potentially exposed to similar victimization themselves once being again before, rather than on, the bench. There would be more neutrality, civility and judiciousness with a nonpermanent, non-reelectable trial bench, so one could hardly quarrel with the idea--unless one has a vested interest in the opposite. And that is the point.

MICHAEL J. KENNEDY

Victorville

* I have long been a friend, occasional trekking partner and unqualified admirer of Wheat for his brilliant intellect and particularly for his unstinting efforts to improve the administration of justice. He again hits the nail on the head in his commentary. California’s present scheme for the election of trial court judges is indeed broken. I part company somewhat with Wheat in his suggestion of the remedy.

In an odd bit of free-speech jurisprudence, the U.S. Supreme Court has unequivocally declared that money talks. An effort to preclude candidates from spending their own money in campaigns is likely to be held unconstitutional, and experience shows that generally there will be loopholes to be found in efforts to limit the expenditures of others.

I suggest modification of Wheat’s plan to preclude judges from sitting on cases where a campaign contributor or active supporter is involved as a party or lawyer. Better, California should consider appointment of trial judges (now the method in at least 80% of judges because of recurring vacancies) as the sole method of selection. Life tenure, as in the case of federal judges, seems inappropriate.

Trial court judges could, however, be appointed for 12-year terms as now are judges of the California appellate courts and Supreme Court. At the end of the term they would be subjected to a “yes or no” retention election, as are the judges of the higher courts, or better yet subjected to earlier periodic review of their performance by a nonpartisan panel, thus avoiding all electioneering.

ROBERT S. THOMPSON

Retired Justice, California Court of Appeal

Professor Emeritus, USC Law Center