Making a Case That the People Have Spoken

Atty. Gen. Dan Lungren wasn’t at all timid before the election about attacking hippie Zonker Harris. He berated the cartoon character--more precisely, the “Doonesbury” comic strip--for winking at drug use and plugging Proposition 215, the medicinal marijuana initiative. But after the voters bought into 215, the AG backed off and people now wonder whether he has wimped out.

Lungren won’t be filing any court suits trying to overturn the new pot law. He’s accepting the voters’ decision, at least his narrow interpretation of it. For example: Don’t get caught selling a bag to some kid, he warns, unless the kid is “in the last stages of a terminal disease.”

“People say ‘Challenge 215!’ ” Lungren said in an interview. “I challenged it before it was voted on. I don’t understand this ‘sore loser syndrome,’ which is, we can’t win in the democratic process so we’ve got to go win in the courts. People pass anything now, it’s immediately challenged in the court.

“We tell people, ‘If you don’t like a law, go use the process and change it.’ Well, despite my best efforts, they changed the law. And we’re going to have to live with it.”

All of which brings us to another, even more controversial ballot measure, which Lungren also dwells on as he stresses his main point: “the overweening power of the federal judiciary.”

As he puts it: “Think about what we are doing with Prop. 209 now. Only a lawyer could claim that when you prohibit discrimination, that in itself is discrimination.”

*

In San Francisco today, U.S. District Judge Thelton Henderson will hold a hearing on whether to grant a preliminary injunction against 209. Everybody expects that he will. Last month, he temporarily blocked enforcement of the measure, asserting there’s a “strong probability” it is unconstitutional.

Proposition 209 decrees that “the state shall not discriminate against or grant preferential treatment” to anybody “on the basis of race, sex,” etc. in public employment, education or contracting.

That may sound pretty simple to most voters. But the judge wrote that “courts must look beyond the plain language of an enactment.” What’s “relevant,” he said, “is whether, in reality, the burden [of 209] falls on minorities and women.”

To Lungren, that suggests Henderson “should have quoted Alice in Wonderland, because Alice in Wonderland told us that words don’t matter. It’s the master who matters--the person who’s able to use words in whatever way he or she wishes.

“If words are incapable of being understood by the average person and only understood by this new elite group we call ‘the legal establishment,’ then what we’ve done is create an insiders’ game. I mean, how do people after a while have any faith that they are part of the system and can effectuate change?”

What matters to a federal judge, of course, is not the voters’ desires, but whether those desires conflict with the Constitution.

At the same time, just because a federal court says something is unconstitutional does not necessarily mean that it is; it just means, in a nation of laws, we must treat it as unconstitutional. Different judges from different philosophical backgrounds see things differently. They tend to reflect the ideologies of the presidents who nominate them.

“I don’t blame them for their viewpoint,” Lungren says, “but to suggest they don’t bring a viewpoint to the bench is to suggest they were immaculately conceived. . . . They don’t have any greater sense of what’s right than anybody else. It’s really a very elitist approach we’ve run into. They’ve become philosopher kings.”

*

Lungren believes that federal judges, being fallible creatures of politics, should be stripped of their lifetime job guarantee. He’d require them to stand for reconfirmation by the U.S. Senate every 10 years or so. California judges--even Supreme Court justices--after all, must be reconfirmed by voters.

Even better, Lungren says, just limit federal judges to one term. Then there’d be no question of political pressure.

But since eliminating lifetime tenure for federal judges would require a constitutional amendment, Lungren says he’d settle for more modest changes. He’d permit an attorney to disqualify a judge for prejudice, allowing one “preemptory challenge” as in California courts. Presumably, that would send Henderson packing from the 209 case; he’s a former civil rights lawyer.

Lungren also says a single jurist should not be allowed to thwart the people’s will; it should require a three-judge panel.

“We ought to have a fundamental discussion in this country about checks and balances,” Lungren says. “Now, there is no check and balance in the federal court system.”

Lungren has moved on from “Doonesbury” to the judiciary; from Zonker Harris to Thelton Henderson.