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Why Not Drop State Court Elections? : Federal System of Judicial Tenure Might Be Applied Here

November 13, 1986|OTTO M. KAUS | Otto M. Kaus, an associate justice of the California Supreme Court from 1981 to 1985, is in private practice in Los Angeles

While the focus in this year's judicial election was on the California Supreme Court, many of us felt all along that if the effort to unseat one or more of the justices succeeded, the state was in for quadrennial campaigns to dump not only members of that court but also justices of the courts of appeal who have displeased one pressure group or another.

The prophecy came true four years earlier than anticipated: Just a few days before the election, five sitting justices of the 2nd District Court of Appeal were blindsided by a mailer from the California Lincoln Clubs Political Action Committee urging their defeat. We are now told by an aide of Los Angeles County Supervisor Pete Schabarum--apparently the architect of the mailer--that the five justices had been targeted because they were last-minute appointments of Jerry Brown, "so their qualifications can't have been carefully looked into." Logically that argument suggests that mankind itself ought to be recalled--was Adam not created at the tail end of the last day of a busy week?

The same aide is also quoted as saying that more funding of appellate "races" was being planned. The implications of all this for the future health of our judicial system are vast. While none of the five appellate justices failed at retention, that lonely mailer caused their vote to be, on the average, 10% below that of other justices on the ballot. Think what an organized campaign could have achieved!

The time has come to take stock. The voters have obviously abandoned the consensus that prevailed for a half-century: that appellate justices are not to be denied retention as long as, to use federal jargon, they are on "good Behaviour"--that is, honest, conscientious, hard-working and in possession of the relevant faculties.

During that half-century, an appointment to a court of appeal or to the Supreme Court had, in effect, been considered an appointment for life. Law school professors sacrificed hard-earned tenure and lawyers gave up lucrative practices for the security and prestige of an appellate court.

Unfortunately, since Nov. 4 there is less reason to suppose that these inducements will continue to attract good men and women. As before, anyone who accepts an appellate position will have to face the voters at the next gubernatorial election and then periodically whenever the term is up. Starting in 1990, however, he or she will have to think in terms of organizing campaigns, collecting contributions and, worst of all, not offending the electorate, if it can be done without violating one's oath--no mean trick, particularly in view of the changing moods of the voters. Today's crusade is tomorrow's Vietnam.

Four years down the road some charismatic liberal may run for governor and ask the voters to throw out the Supreme Court justices appointed by his predecessor--they will all be on the ballot--so that he can replace them with "enlightened" and "progressive" justices of his choosing. Do we really want politicians running on a ticket with unnamed but ideologically pigeonholed candidates for the appellate courts of this state?

It is submitted that we should give serious thought to the abolition of retention elections and the enactment of a system of judicial tenure roughly analogous to the one that has served the federal courts well for more than two centuries. I am not concerned about the fact that if such a system is installed in 1988, to be operational in 1990, it will give "good Behaviour" tenure to the justices who will be appointed by Gov. George Deukmejian as replacements for the three "liberals" who were not retained this month. His past appointments have been beyond reproach, and we have to start somewhere. Besides, the chances of persuading the voters that constitutional change is in order seem best at a time when that change promises judicial longevity to justices with whom they are presumably in tune.

While this is not the time for a detailed discussion of desirable differences from the federal model, I would suggest at least two:

First, mainly for lack of a practical forum for the imposition of discipline, some federal judges' views on what constitutes good behavior have been very flexible indeed. A few others confuse the federal bench with Mt. Olympus or Valhalla. Therefore I believe that the retention of our California Commission on Judicial Performance is essential; the independence of the judiciary does not demand freedom to be rude, inconsiderate, lazy or drunk on the job.

Second, I would certainly not favor confirmation of nominees by either branch of the Legislature. This would let in through the back door what we are trying to get rid of up front: the politicization of the judiciary. On the other hand, most observers agree that the Commission on Judicial Appointments as constituted today--the chief justice, the attorney general, a presiding justice of the court of appeal--is too narrowly based. Let us hear from the political scientists.

In brief, there is lots of thinking and discussing to be done. We should start the debate now. The future of our judicial system is at stake.

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