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Supreme Court Selection

November 28, 1986

A word of commendation is in order with respect to the recent article by former Supreme Court Justice Otto M. Kaus, advocating replacement of the prevailing judicial retention system (Editorial Pages, Nov. 13).

He favors a structure combining the main features of the federal life-tenure system for judges (during "good behavior"), and California's Commission on Judicial Performance (which has the power to remove or discipline judges for misbehavior). Kaus' proposal that we consider combining the two, and that we "start the debate now", has much to commend it. My hope is that it will be conducive to thoughtful debate.

Many of us were dismayed by the politicized infection of the retention process inherent in Gov. George Deukmejian's proclaimed campaign objective of seeking the defeat of three embattled Supreme Court incumbents. When a governor is able to say to the electorate in substance: "Elect me and also give me three vacancies on the Supreme Court that I can fill!"--then the composition of the court is virtually up for political grabs. He now has those three appointments to make.

There was more to come in the recent campaign. I refer to the unprincipled, 11th-hour effort by a political action committee to defeat five incumbent justices of the Court of Appeal, Second Department. Kaus has pointed out that a solitary and belated mailing by this political action committee cut down the favorable vote of the five ambushed incumbents by an average of 10% below that of the other justices on the ballot. And this without stating any reasons for its attack. As Kaus pungently put it: "Think what an organized campaign could have achieved!"

Are these events mere aberrations or a precursor of things to come? History's lesson leads to grim forebodings.

Those strange noises we've been hearing lately are the stirrings in the graves of the early, high-minded proponents of the retention system who believed that they had eliminated the dangers of a politicized judiciary.



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