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Judicial Vote Reconsideration

October 22, 1986

This letter is the result of extensive reconsideration of my position on the upcoming judicial election.

As many persons know, I have been an active academic critic of Chief Justice Rose Elizabeth Bird and some of her colleagues. I have published two pamphlets that are critical of the court's work in a number of areas of law. I have participated in many programs on the subject before civic groups and law faculties.

Recently press accounts have described me as taking the view that the voters may deny retention to justices to change the direction of the law. I have been quoted as speculating that I might personally vote against several justices. These statements go beyond my writings, which make a strong case only against Bird and indicate that the other justices have acted independently of her and with more moderation.

On further consideration I think I was wrong to make any statements going beyond the chief justice herself. Indeed, I am now convinced that the best outcome for the election would be the retention of Joseph Grodin, Cruz Reynoso, Stanley Mosk, Edward Panelli and Malcolm Lucas.

The defeat of Bird has been virtually conceded for months now, and there is substantial support in informed circles for the view that she lacks the impartiality and balanced judgment required for the role of chief justice.

No similar case can be made against any other justice. The justices have demonstrated independent judgment, and each has clear strengths.

The defeat of Reynoso in particular would be inevitably attributed to prejudice. The defeat of Reynoso and Grodin together would be attributed to the power of an emotional campaign to link their names with Bird.

At this point I think all of us in these debates have failed to acknowledge how widely the blame for this situation has to be shared.

The court has made its errors, but so have its opponents and the public at large. Those who supported the Briggs Initiative are in a poor position to complain about the trouble it caused. The public that passed this death-penalty initiative, but also reelected a governor who was a known opponent of capital punishment, does not seem to have been of one mind.

At this point the important thing is to look to the future, not the past. I do not want to see a precedent created that will encourage future challenges. Once in a long while it may be healthy for the court to face the challenge of a public debate, but once in a long while is enough.

If only Bird is defeated, one lesson will be that the public can make selective judgments, and that a publicity campaign to link other justices to Bird failed even under extraordinarily favorable circumstances. This will hardly encourage further efforts where there is less cause.

The defeat of the chief justice alone will also set in motion the process of change and accommodation that many feel is necessary. That change should be orderly and gradual, and probably it is best not to trust any single governor with several appointments at once.

What we should do is restore the balance, not swing the pendulum to the other side.

Accordingly, I have decided to vote for and support Justices Reynoso, Grodin and Mosk, as well as Panelli and Lucas.

This decision is based not only on my view of what is best for the judiciary, but also on a recognition that these justices all have strong positive qualities that outweigh any reservations I may have expressed earlier.


Professor of Law

University of California


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