George and Chin Are Unfairly Targeted

With four Supreme Court justices on next month’s ballot, Californians must consider what standard to apply in voting yes or no on keeping a judge in office. The question presses because, for the first time since Chief Justice Rose Elizabeth Bird and two colleagues were booted off the court in 1986, justices face organized opposition. Chief Justice Ronald M. George and Justice Ming W. Chin are targeted by anti-abortion groups for their votes last year striking down a state law requiring girls 17 or younger to get permission of a parent or judge in order to have an abortion.

On one side, some say it’s OK to vote against a judge simply because of disagreement with his or her decisions or even a single decision. This is the stance of the anti-abortion groups opposing George and Chin. That view, however, leads to Field Poll justice, with the judges testing the political winds before each decision. It would undermine a judge’s duty, under the California Code of Judicial Ethics, to apply the law “regardless of partisan interests, public clamor or fear of criticism.” In particular, it would threaten constitutional rights, which often are rights of individuals and groups against the majority--the right of free speech for protesters at abortion clinics, for example.

On the other side, some say a judge should be retained unless “incompetent,” in the narrow sense of being guilty of misconduct or unable or unwilling to do the job. But this test leaves hardly any role for the voters, especially since California has a Commission on Judicial Performance to deal with this kind of incompetent judge.

The best standard is a middle one. Call it “judicial qualities,” or judicial competence broadly defined. This test asks whether the judge has shown impartiality, fairness, an open mind and good judgment; whether the judge respects the limits of judicial power; whether the judge, whatever his or her judicial ideology, has the public’s confidence.

In 1986, I supported the ouster of Bird (though not of the colleagues she dragged down with her, Justices Cruz Reynoso and Joseph Grodin). The vote against Bird was 2-to-1. It was primarily based, I think, not simply on disagreement with her opinions--let alone a single opinion--but on a perception that she lacked judicial qualities.

On the death penalty, Bird had voted to reverse the penalty in 61 of 61 cases. Voters could reasonably conclude that she was refusing to enforce the law. In civil cases, Bird’s opinions were consistently extreme, and her reapportionment decisions were fairly called partisan. Moreover, she was the chief justice, a role calling for special traits of leadership, judgment, consensus-building and inspiration of public confidence, traits she notably lacked.

So when those urging a no vote on George and Chin cite Bird’s defeat as a precedent, they are wrong. Bird was removed not because voters disagreed with one or more of her opinions, but because they found her to be the rare bad judge for which judicial elections exist as a safety valve. California’s legal profession could be expected to unite in defense of a judge targeted for his or her opinions; significantly, the state’s lawyers and judges did not unite in defense of Bird.

This year, in contrast, the profession has united in support of George and Chin. The case against them is nothing like the case against Bird. It is avowedly based on a single decision, the abortion consent ruling.

The court in that case was doing its job: deciding a close question under the privacy clause of the California Constitution. Whichever side lost would scream that the decision trampled fundamental rights of either girls or parents. If disagreement with such a decision is a legitimate ground for throwing judges out of office, we might as well turn over court decisions to popular vote.

Under the broad test of judicial competence, there is no basis for voting no on George or Chin (or the other justices on the ballot who are not opposed, Stanley Mosk and Janice Rogers Brown). The campaign against George and Chin puts it squarely to voters whether we want judges with fingers to the political winds or judges unafraid to apply the law as they see it.