Once again, the specter of highly partisan campaigns for state
and local judgeships hangs over California.
Once again, the specter of highly partisan campaigns for state and local judgeships hangs over California.
The last time this threat appeared was in the early 1980s when then-Gov. George Deukmejian made the removal of most of the state Supreme Court a top priority shortly after his election in 1982. Deukmejian and other Republican activists used previously routine yes-or-no votes to get rid of then-Chief Justice Rose Bird and several other justices in 1984. Because voters ousted all but one judge Deukmejian targeted, he was able to shape the court’s direction for at least the next 22 years.
That campaign followed by less than half a dozen years the drives in Los Angeles to oust lower court judges Alfred Gitelson and Paul Egly over their rulings insisting on the use of busing to integrate the city’s public schools.
But since then, no California Supreme Court justice has been seriously challenged and lower court judges have only rarely faced so much as a challenger. When challenges do arise, they are usually over the way specific cases were handled, and not over partisan ideology.
But a narrow decision handed down earlier this year by the U.S. Supreme Court now threatens this generally pacific state of affairs. And if partisan change comes to the judiciary, only one group stands to benefit: political consultants who could make millions if judges begin running ordinary political campaigns.
Here’s what the justices did in a case challenging a longstanding Minnesota law that forbade judges from speaking at political party meetings, seeking party endorsements or personally raising campaign funds: By a 5-4 margin, the high court without comment let stand an appeals court decision declaring the Minnesota law unconstitutional.
This may be one time when differences between the California state Constitution and federal law work in the state’s favor. For the state Constitution makes judges non-partisan officials. When they run for Superior Court offices, they can be opposed but the ballot never tells voters to which party they or their rivals belong.
Meanwhile, appellate judges and state Supreme Court justices must face up or down votes at the first election after their appointment and every 12 years after that. No opponents can file against them, although anyone who likes can run a campaign urging a “no” vote on any justice.
The nonpartisan nature of this structure still allows judges and their occasional challengers to raise all the money they like for campaigns, although very few gather much. What campaign contributions they get come mostly from lawyers – not surprising since all were attorneys before taking the bench and most retain their previous friendship circles.
But what if political parties began endorsing judicial candidates, as the U.S. Supreme Court now hints they can? Judges might then have to campaign on platforms, like ordinary politicians. They would have to take stands on abortion, gun control, the death penalty, sentencing practices and even issues like medical marijuana and driver’s licenses for illegal immigrants.
Once they’ve done that, how fair a hearing could anyone expect when going into a courtroom? If a judge has already announced he’s against abortion, and you are accused of assaulting an abortion doctor and then acquitted by that judge, how will you and the public feel about the fairness of that trial? If a judge is on record favoring medical marijuana, how fair a shot will prosecutors feel they have getting pot convictions in his courtroom? If a judge runs as a Democrat, how fair can he be when a Democratic public official is sued in his court?
Questions like this are the reason judges all the way to the U.S. Supreme Court level usually refuse to reveal their positions on controversial issues during confirmation proceedings. If they were on record favoring one side or another, they could either be viewed as totally biased when handling related cases or they could be forced to recuse themselves entirely.
And if recusals become everyday events, the court system could be frozen for lack of impartial jurists.
That’s the Pandora’s Box the U.S. Supreme Court threatens to open, and Californians can only hope their state Constitution will protect them in the storm of campaigns that may soon come.
Tom Elias is a syndicated columnist and author of several books.
