Chief Justice George’s Mistaken Case of Identity

The right-wing challenge to the retention of state Chief Justice Ronald M. George and Associate Justice Ming W. Chin surfaced during the state Republican Convention last weekend. Let’s hope it is not a portent of the campaign ahead. Delegates were urged to “stop liberal judges” like George, who “undermined parents’ rights” in striking down the parental consent requirement for abortions by minors, “sided with criminals” by recognizing judicial discretion to strike prior convictions under the “three strikes” law and “violated the rights of religious property owners” by requiring them to rent to unmarried couples. Scoring this as three victories for the ACLU, one hit piece concluded, “Three strikes and your (sic) out!”

The defense that most lawyers (and liberals) would like to hear is a ringing call for the principle of judicial independence. Judges aren’t supposed to decide cases by checking to see which side the ACLU is on and voting the other way. We want judges to decide cases by following the law and their conscience, not polls. Retention elections should not be turned into referendums on the popularity of one decision or another. The problem is, that was the defense presented by Rose Bird, Cruz Reynoso and Joseph Grodin in 1986. And look where it got them.

George seems to have chosen another path. He invited former Gov. George Deukmejian, who led the attack on the justices in 1986, to be honorary chairman of his campaign. The message will be that George can be trusted by conservatives to uphold death penalty judgments, to protect businesses, to “close loopholes exposed by criminal defense attorneys.”

Upon reading the literature circulated at the convention by the “Committee to Retain Chief Justice Ronald M. George,” one would think his real opponent is former Chief Justice Rose Bird. Delegates were informed that, under George, “the Supreme Court has restored common sense and individual responsibility to our civil justice system by overturning numerous Rose Bird-era precedents.” Boasting of a 90% affirmance rate for death penalty cases, and overturning “at least five liberal decisions of Rose Bird,” George’s record is presented not as the record of an independent judge who is no longer beholden to those who appointed him, but as a conservative with a conservative agenda.

The problem with this strategy, of course, is that it is bound to reopen old wounds. Many voters who were not fans of Bird still resented Deukmejian’s vicious attacks on Grodin and Reynoso, and thought the GOP campaign against the justices in 1986 was unfair and contemptuous of the principle of judicial independence. By identifying himself with that campaign and running against Bird again, George could end up alienating the right and the left. If his response to sniping from the right is to reassure them that he is “one of theirs,” George faces a real risk of having the left believe him.

The irony, of course, is that George is not perceived by the left or the center as a doctrinaire conservative. He is widely viewed as a thoughtful judge who has risen above politics and guided the court to a moderate and centrist position on most issues.

California voters have never been treated to a judicial retention campaign that truly educated them on the proper role of judges, largely because retention elections are iimbued with gubernatorial politics and the agendas of opportunistic politicians. In campaigning to unseat George, the far right makes an arrogant assumption that the governor who would choose his replacement will be a Republican. If the gubernatorial candidacy of Dan Lungren falters, there certainly would be Democrats who would welcome George’s defeat and lend a hidden hand to accomplish it.

George might profit from the example set by Justice Chin, who has retained Republican political consultant Ken Khachigian. Delegates were given a simple summary of each Supreme Court opinion Chin has written, without comments or explanations. Anti-Bird rhetoric and political polemics were completely absent, as they should be.

The greatest threat to George’s retention may not be the rantings of the right wing of the Republican Party. The greatest threat may be George’s response to that attack. By reassuring the right wing of his sympathy for their causes, George may be taken at his word and perceived as one who is willing to compromise his independence to win an election.