A lot of very smart people have gone off the deep end, and we need to bring them to their senses before they do any more harm.
California's Commission on Judicial Performance, the agency that disciplines judges, is investigating Justice J. Anthony Kline of the California Court of Appeal, a respected senior judge. The commission charges Kline with knowing disregard of the law. The state Legislature has jumped into the fray by passing a bill that would strip the commission of power to discipline a judge if the offense occurred in a judicial decision or dissenting opinion.
Unfortunately, all these distinguished persons--Kline, the members of the commission and the state Legislature--have lost their sense of proportion.
Start with Justice Kline. Last December, he wrote a dissenting opinion in which he said he could no longer abide by controlling precedent. The issue at stake is reasonably obscure: When parties to a civil dispute have settled, may they expunge ("vacate") any existing judgment in their dispute? Courts and scholars have struggled with the question. Kline reached one conclusion; the California Supreme Court reached a different one.
But Justice Kline was unwilling to abide by the Supreme Court's decision. That's wrong. A judge possesses legitimate power only insofar as he submits to the discipline of law. Without that willingness, a judge should not wield the power of the office. There may be extreme circumstances in which a judge has the right or even the duty to stand against an immoral law. This situation isn't even close.
If Kline's dissent showed a lack of proportion, the commission has made things worse. A lawless judge should be removed from office. But Anthony Kline isn't such a judge. Honest, bright, hard-working and creative, he has been a distinguished jurist. Any system of discipline relies on wise prosecutorial discretion. Here the commission has failed us. A good prosecutor does not devote attention to litterbugs when faced with roaming murderers. The commission is squandering public funds and its reputation in prosecuting what must be seen as an act of uncharacteristic bad judgment.
Rallying to Kline's cause, the Legislature proposes to make matters even worse by excluding from judicial discipline statements made in opinions. That's wrong for two reasons. Again, it is disproportionate. Faulty exercises of prosecutorial discretion call for replacing or reprimanding the prosecutor. Legislating on the basis of a single misguided prosecution is as silly as it was for the commission to launch its investigation on the basis of a single dissent by Kline.
Worse, it's substantively wrong. Kline isn't such a case, but the commission should have the power to discipline a judge who decided a case as a result of deep racial bias or a bribe. Yet the bill might hamper the commission from acting in those circumstances.
Each of the actors in this drama has meant well, but their extreme stances threaten disaster. If the commission can get off its high horse, if Kline can reconsider the breadth of his position, if the governor's veto can rescue the Legislature from its efforts to stand between the justice and the commission, perhaps we can get on to the really difficult problems.