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Judgment call

California needs a way to keep partisan and special-interest politics out of court races.

July 24, 2008

Every two years, a handful of California's Superior Court seats open up without the governor appointing new judges to fill them. Lawyers who are impatient with the appointment process, or don't believe they have a chance with the governor, or tried it and failed, take the other available course -- they ask voters to elect them to the bench. But voters struggle with a dearth of information about the candidates.

Good-government groups, bar associations and editorial pages such as this one try to fill the gap by rating or endorsing or at least offering information on candidates' competency, experience and judicial temperament. But political parties and special-interest groups know that they can spice up otherwise boring judicial elections -- and at the same time stock the bench with jurists they believe will be more favorable to their causes -- by eliciting and relaying information aimed at voters' emotions. They have begun peppering candidates and appellate jurists with questionnaires to lock them into positions, and the responses find their way into glossy mailers sent to voters and donors.

It's a step down a dangerous road. Such questionnaires are bald attempts to coax candidates into publicly endorsing one special interest or another and to threaten sitting jurists with removal if their positions and rulings don't pass muster. But banning such questionnaires would violate the candidates' 1st Amendment rights.

In many other states, courts already are heavily politicized, perhaps beyond redemption. When trial judges and even state high court justices run on partisan tickets or raise millions of dollars from labor, business or political groups for their campaigns after taking public positions on issues that may come before them, the public can no longer have faith that rulings are based on law rather than patronage.

Former Gov. Pete Wilson has offered an unusual solution -- a state constitutional amendment that would express the public's wish that candidates decline to take positions on controversial issues. It would avoid a clash with free-speech rights because a candidate could still fill out a questionnaire. But an opponent would be able to flag the fact that the decision to fill it out goes against the public desire expressed in the amendment.

An unenforceable amendment to the state Constitution would be a poor precedent, but Wilson is to be commended for broadening the discussion. California courts are still relatively free from partisan and special-interest politics, and the Commission on Impartial Courts should consider some version of Wilson's suggestion -- short of a constitutional amendment -- in the report it issues later this summer.

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