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'Lesson for Deukmejian'

September 14, 1986

Brosnahan certainly let out all of the stops. He apparently subscribes to the Chestnut Theory of writing--lard your work with enough references to famous people, preferably dead, and famous aphorisms, also preferably dead or dying, and you won't have to think in a straight line or produce a coherent argument.

I think the theory is that any piece that refers to Chief Justice John Marshall, Sen. Sam Ervin (D-N.C.) and President Franklin D. Roosevelt in approximately three or four breaths of each other can't be all bad.

The only real sour point was the reference to Uganda. I imagine even Brosnahan was a bit red in the face when he reread that portion of his article. Come on, James, Gov. George Deukmejian may not be the liberal you pine for, but Idi Amin he ain't.

In any case, if we are charitable, beneath the lumpy ups and downs of Brosnahan's prose style, there seen to lurk three arguments for why the governor is wrong to campaign against the retention of Chief Justice Bird and Justices Grodin and Reynoso.

I have space to deal with only one of these arguments. It is the most important, and it relates to judicial independence. Brosnahan claims campaigning against the retention of a justice undermines judicial independence. (And by the way--does Brosnahan mean it is wrong to campaign against any justice, at any time, for any reason, or just when the sitting governor may appoint a conservative replacement?) This is a complex issue, but the immediate response must surely be there is no evidence to support the claim that requiring the justices to face the voters at infrequent intervals affects their independence at all.

Indeed, if one is to judge by Rose Bird's conduct, one would conclude the opposite is true. The further she falls behind in the polls, the more she spunkily declares she will do whatever she wants, regardless of what the voters think.

More important, however, despite Brosnahan's gushing references to the Founding Fathers, and the Federalist Papers, judicial independence is not an absolute. Indeed, as any American lawyer should recognize, complete judicial independence, the kind Brosnahan apparently advocates, and the kind that can only be achieved by lifetime tenure, is anti-majoritarian and anti-democratic.

These anti-majoritarian and anti-democratic tendencies can be balanced by judicial self-restraint. Happily, through much of our history the U.S. Supreme Court has achieved such a balance.


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