PACking the Court

NEVER HAVE THE people wielded as much power as they will this Tuesday in California, but the state's most democratic election may turn out to be its most unfortunate.

Along with heightened democracy comes demagoguery, and right-wingers are exploiting California's very democratic election laws in order to increase their own power. Unlike the federal government, California and most other states require their Supreme Court Justices periodically to stand for approval by the voters. This year, not only will the people elect a governor, a senator, and 45 congressmen, but they will also decide the fate of six of the state's seven Supreme Court Justices.

California conservatives are loathe to waste such an opportunity to spread their revolution into the judiciary. The Right has spared no expense in a campaign to oust the Court's three most liberal Justices, knowing that their defeat will enable Republican Governor George Deukmejian to appoint new, conservative Justices and thereby shift the ideological balance of the Court.

If the right gets its way, no longer will the state's highest court be a haven for liberals out of tune with the current will of the people. And if the right gets its way--as the polls indicate it will--the state of justice and of the Court in California may never be the same. A political campaign--replete with PACs, and 30-second TV spots--against sitting Supreme Court Justices can only serve to throw the Court into the realm of politics and ideological litmus tests.

PUTTING THE WORDS "Supreme Court" and "campaign" together yields a phrase as oxymoronic as "military intelligence" or "jumbo shrimp." By requiring Justices to grovel before the people in order to garner votes, California--and most other states, for that matter--violates one of the most crucial tenets of American constitutionalism. For the judiciary to check and restrain the other two branches of government, judges must be free from the pressures of electoral politics. To elect judges--and thereby force them to be responsive to the whims of the electorate--is to sacrifice long-term justice to the political trends of the moment.

And just how well can campaigns for or against Supreme Court Justices really work? In California, opponents of Chief Justice Rose Bird and Associate Justices Joseph Grodin and Cruz Reynoso assert that the three justices should be removed because they are out of touch with the majority, especially on the issue of the death penalty. Ideology and specific issues become the centerpieces of Court campaigns, while the subtle principles the Court is charged with enforcing are lost by the wayside.

Even ideology and issues cannot be explored thoroughly in California's "Bye-Bye Birdie" campaign, as the Chief Justice's opponents have dubbed it. The 30-second commercials and sloganeering so basic to contemporary political campaigning preempt informed discussion. The syllogism, "The Chief Justice has generally voted against executions. I, however, favor them. Therefore I wish to remove her from the Court," typifies what will run through the minds of many voters as they mark their ballots. This kind of cheap politicization of the Court is precisely what the Founding Fathers sought to avoid when they wrote life tenure for federal judges into the U.S. Constitution.

And the difficulties inherent in Court campaigns go on and on. Should a Justice take stands on specific issues, thereby prejudicing himself in future cases? Should Justices look to Gallup polls in deciding cases to insure that they do not lose touch with the will of the people? And should a Justice prostitute himself to PACs in order to raise money to hire political consultants and run campaign ads? A Justice who campaigns may find it difficult to serve with integrity; but without a campaign, it may be difficult for a justice to serve at all.

POLITICAL CAMPAIGNS against judges have no place in a society that values the rule of law. The California constitution, by requiring judges to stand for election, makes the Court vulnerable to partisan attack, crippling its independence and compromising its jurisprudence.

Conservatives claim that the Supreme Court Justices whom they have targeted should be voted out of office for misinterpreting the state constitution. But it is these conservatives--in their willingness to politicize the judiciary and compromise judicial independence--who show contempt for constitutionalism and reveal their willingness to subvert government institutions for the sake of power.

What is objectionable is not that the Right seeks power, but that it seeks it in and through the Supreme Court. All political groups and interests have a right to advocate a political agenda, elect candidates, and attempt to change government policy. The judiciary, however, is not the place for a coup d'etat.

Californians should vote to re-elect every Justice on the Court, and all states which currently elect their Supreme Court Justices should amend their constitutions and grant them life tenure. Justice is too important to be subject to the whims of the majority.