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Returning the Court to Greatness : Governor Should Resist the Fad of Screening for Politics

November 06, 1986|MICHAEL MOORE | Michael Moore is the Robert Kingsley professor of law at USC.

With the most controversial election in the California Supreme Court's history behind us, it is time to look ahead. The continued greatness of our court requires us to put aside whatever differences we may have had over Chief Justice Rose Elizabeth Bird or Justices Joseph R. Grodin and Cruz Reynoso, and refrain from handwringing about the dangerous precedent that their defeat may set in future elections. We can face that issue when and if it arises.

The business at hand is the unparalleled opportunity presented Gov. George Deukmejian to return the court to its former greatness. Since the retention election system for justices began in 1934, no governor has had the opportunity to appoint three justices, including the chief justice, in one stroke. It is an opportunity that I hope Deukmejian will not squander.

There has been an unfortunate tendency to appoint justices based on their political views in an effort to promote certain opinions through court decisions. President Reagan's ideological-purification program for federal judges illustrates just how far that tendency has gone at the federal level.

It may be particularly tempting to Deukmejian to continue this trend, especially since his appointment opportunities arise because of the election losses of Bird, Grodin and Reynoso. If their defeat is construed as a rejection of their political views, this may seem to mandate the appointment of politically conservative justices.

Yet this is a temptation to be resisted. Many of us did not oppose Bird on the ground that she was too liberal politically. We opposed her because she did not understand the limitations that make judicial office different from political office. Indeed, the governor himself, in his well-publicized opposition to all three of the defeated justices, did not suggest that it was their politics that bothered him. He contended that none of them understood the limitations of the judicial office, particularly when it came to the death penalty.

If that was the legitimate complaint against Bird, Grodin and Reynoso, then neither the voters nor the governor should interpret their election defeat as a mandate for more politically conservative justices. Rather, Deukmejian should see it as a mandate to return the court to judges who understand the constraints that define the office of judging. Thus the election mandates that the governor not pack the court with doctrinaire conservatives. The broad political spectrum that opposed Bird, Grodin and Reynoso gave the governor the appointment opportunities that he now possesses in a kind of public trust. That trust would be abused by Reagan-like judicial appointments, with their stringently conservative political litmus tests.

Even if these three appointment opportunities did not arise from a retention election, there are good reasons not to appoint justices on political grounds. These reasons stem from the nature of judging itself, particularly when the judging is done at the highest appellate levels. Great judges can be of widely varying political stripes because their greatness does not inhere solely or even mostly in the makeup of their political views.

Good judging demands a range of talents, including the ability to make individual decisions that rightly balance the formal ingredients in adjudication with certain value-laden ingredients. For example, in interpreting statutes good judging requires a balancing of the well-established meanings of words with the purpose that such a statute should serve in a just society. Good judging also requires generalizing individual case decisions into the matters of principle that mark a system of law as a coherent whole, not a patchwork of ad hoc political compromises. Further, good judging is achieved only by those who have a high degree of awareness of their judicial philosophy, for the skills of judging, unlike the skills needed for some other activities, require conscious attention to theories of how the activity is best executed.

These qualities of the judicial temperament are not possessed exclusively by either political liberals or political conservatives. In fact, there is no correlation between an individual's political views and his or her possession of these qualities. Thus, to reconstitute our court with good judges, the governor ought to eschew narrow political grounds for his appointments.

Deukmejian particularly should avoid any single-issue appointment practices, such as appointing only those who personally favor the death penalty or oppose abortion or favor school prayer. To base judicial appointments on these kinds of single issues probably would guarantee us a mediocre Supreme Court.

Admittedly, a politically balanced set of appointments departs from the unfortunate tradition--carried on by Jerry Brown, among others--of maximizing the continuation of a governor's political views through politically motivated judicial appointments. Yet this is a tradition that we would all be well rid of. We are better served by a court staffed by the best in the legal profession, without regard to their politics or their views on particular issues. This is particularly true in these troubled times for the court, which needs to be, and to be perceived as, removed from politics.

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