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'Proper Role as a Judge'

August 13, 1985

Michael Moore's articles on the California Supreme Court (Editorial Pages, July 29-30-31) are of a piece with his scholarly writings with which I am familiar. He consistently uses many words to plod to politically conservative conclusions, which he argues are objective, neutral, and not based upon his political preferences. His apparent sincerity indicates that he has actually deceived himself, though I doubt that he can fool his barber or many first-year law students.

In this instance, his neutral test for deciding whether to vote for or against Chief Justice Rose Elizabeth Bird is to ask whether she "has stepped outside the proper role of a judge." He says that she has because she finds procedural errors in order to advance her own moral convictions. If this is the test, then I move the impeachment of every judge sitting on state and federal benchs.

Let us also recall that the late Roger Traynor of the "once-great" California Supreme Court was considered a "great" chief justice (by law professors) precisely because he stepped outside traditional techniques of judging and radically reformed the law.

Moore's "proper role as a judge" standard turns out to be just another way of describing his disagreement with Chief Justice Bird's death penalty values. I'm voting for Bird, which is just another way of describing my agreement with those values. Unlike Moore, I don't pretend that my decision could be anything more, or less, than political.

ROBERT W. BENSON

Professor of Jurisprudence

Loyola Law School

Los Angeles

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