A Barrier to the Bench

Gov. Gray Davis’ reckless and imperious comments Tuesday on the role of judges could well dissuade thoughtful men and women from even applying for a spot on the bench. With 61 vacant judgeships statewide, perhaps the largest number in 10 years, that’s a real problem. More immediately, however, Davis’ ill-considered statements, despite his attempt late Wednesday to backpedal, reveal a fundamental and alarming misunderstanding of the separation of powers.

Speaking to reporters in Washington, the governor said that he would expect judges he appoints who later break with him on key issues, such as support for the death penalty or opposition to same-sex marriage, to resign. “I feel very passionately about this,” Davis said. Gubernatorial appointees, including judges, “should not be free agents.”

In the case of judges, they are and they should be. Davis, as governor, has broad authority to appoint judges to the state trial and appellate courts. Once on the bench, however, judges are accountable not to the governor but to the voters, who must periodically reelect them and may recall them. As in the federal system, California courts constitute a separate branch of government, equal to the Legislature and the governor. We expect judges to be independent, not beholden to the governor or anyone else. When that’s so, judges can decide each case fairly, on the facts and the law before them, not on someone’s partisan agenda.

During his first year in office, Davis appointed or elevated 20 judges, and by all accounts he has picked worthy men and women. But his slow pace in filling vacancies, in both the courts and state agencies, is troubling.

The governor has explained his delays by saying he wants to be careful, to pick the right person. He has required that his judicial appointees reflect his views, particularly his support for the death penalty. Governors appropriately expect their appointees to have generally similar views. What’s not appropriate is Davis’ repeated and insistent grilling of judicial job candidates--posing what amounts to a litmus test on the death penalty and other issues--or his dangerously misguided notions of their obligation to serve his political agenda.

With salaries for some starting lawyers now topping the pay of seasoned judges, a bench appointment has few material attractions. Davis’ comments will surely do nothing to make a judicial appointment more desirable.

By Wednesday, the governor seemed to be saying that he just didn’t think before he spoke. But considering the tongue-lashing that Assembly Democrats got last year when they strayed from the governor’s agenda, it seems all too likely that his comments were as deliberate as they are dangerous.