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When Judging Justices: Arguments to the Jury

November 02, 1986|Paul Brest and Elizabeth A. Leff | Paul Brest is a professor of constitutional law at Stanford Law School. Elizabeth A. Leff is a third-year student at Stanford Law School

PALO ALTO — On Tuesday, California voters will decide whether to retain six justices of the state Supreme Court. This question will appear on the same ballot as a host of political candidates. But may we judge the justices in the same way we choose elected officials?

Citizens are free to vote for or against political candidates for any reason. After all, we choose them to represent our views. But justices are different from politicians on the ballot. They are not our representatives. On the contrary, their duty is to uphold the Constitution and laws even when that is politically unpopular. Therefore, we are obligated to retain the justices--even if we don't like their decisions--unless we are convinced that they are corrupt or incompetent, or that they have abused their position. We must exercise this unusual self-restraint in order to protect the court's independence.

The phrase "judicial independence" has been bandied about. But what must judges be independent from ? California's Code of Judicial Conduct provides the answer: Judges must be "unswayed by partisan interests, public clamor or fear of criticism." In other words, justices must be free from outside pressure and political influence--free to reflect on the issues in each case and base decisions on their best interpretation of what the Constitution and laws require. If we treat the justices like political candidates, they will become politicians--concerned with popularity to secure their retention rather than the demands of the law.

Judicial independence is not a notion invented by liberal justices or their supporters. The phrase was coined by our most conservative Founding Father, Alexander Hamilton, who explained that "an independent spirit in judges is necessary . . . to guard the Constitution and the rights of individuals."

More recently, Antonin Scalia, President Reagan's nominee to the U.S. Supreme Court, properly invoked judicial independence during his Senate confirmation hearings when he declined comment on how he would decide particular cases that might come before the court. The senators' questions were irrelevant because Scalia's qualifications as a justice have nothing to do with his views on particular issues, but rather with his integrity and competence in interpreting the laws and Constitution.

Current events abroad provide a striking illustration of the importance of judicial independence. During the last few months, courts in South Africa have struck down some of the government's emergency measures as unconstitutional. Only a strong tradition of independence could enable the judges to make decisions so unpopular with the Pretoria regime.

Of course California is a far cry from South Africa. But an independent judiciary is no less essential to the evenhanded enforcement of our laws and protecting American citizens against unlawful conduct by public officials. In fact, California's judicial-retention elections were part of a reform enacted in 1934, precisely to protect judicial independence. Before then, all judges were candidates in political elections. As Judge John Perry Wood described it, "At election time the judges of Los Angeles and the candidates for the bench spread their names over the county by every method known to advertising. They were billboarded like popular soap; sidewalks and public halls were littered with cards extolling the merits of candidates asking to be permitted to sit in judgment over the lives and property of the people. Contributions were solicited from firms frequently in court."

Since 1934, judges have been appointed, subject to periodic review by the electorate for incompetence or misbehavior in office. This system is designed to protect independence by assuring judges' tenure, while at the same time assuring judicial accountability for abuse of power.

Some people have said that a judicial retention election should also give citizens a chance to express their views about a justice's "judicial philosophy." They agree that it would be wrong to vote against retaining justices merely because we don't like their decisions. They acknowledge that this would compromise judicial independence just when it is most needed--when the court is protecting unpopular causes. But they suggest that appraising a justice's general judicial philosophy is different because it requires looking beyond the results of cases and trying to understand how and why the justice reached those results.

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