The November Judicial Elections and Beyond
The Association is working to preserve a fair and impartial judiciary
By Lee Smalley Edmon
Lee Smalley Edmon is president of the Association.
This President's Page was originally published in the November 1998 issue of Los Angeles Lawyer.
Here are some shocking statistics from recent judicial appellate retention elections in California. In these elections, sitting justices seek an affirmative vote that allows them to serve another term. In 1986, justices were returned to the bench with an average yes vote of 75 percent. That fairly comfortable margin dropped to 65 percent in the 1990 election and to 60 percent in 1994-and those votes were for justices who had no organized opposition.
So why would 40 percent of California voters oppose sitting justices? We can assume that one cause is the trend toward antigovernment voting that has played such a prominent role in contested congressional elections and inspires much of the term limits movement. Cynics might add that the judiciary election results reflect a decline in public confidence in institutions generally and lawyers and judges in particular.
More fundamentally, the public is rarely well informed about individual judicial candidates. The primary source of most voters' information about judges comes from press stories about sensational cases. That's no real surprise: unlike candidates for other positions, judges are constrained on how they campaign and prohibited from making promises about how they will vote on the issues that come before them. They receive little or no media coverage. And to disseminate even the most basic information about a judge's background to the voters through paid advertising is a very costly business. For example, one page in the voter pamphlet costs $50,000. In other words, it is doubtful that the 40 percent who vote against unopposed judges have any idea about whether a particular judge should or should not be retained.
But the consequences of all this is troubling. If a judge without opposition receives 60 percent of the vote, groups that mount organized campaigns against a particular judge need convince only an additional 10 percent of the voters to succeed in ousting the judge. This tells us that a judge who must make a decision that may be politically unpopular and who faces the prospect of becoming a target in an election is under considerable pressure. The late Honorable Otto Kaus compared the dilemma of deciding controversial cases while facing reelection to "finding a crocodile in your bathtub when you go in to shave in the morning. You know it's there and you try not to think about it, but it's hard to think about much else while you're shaving."1
Such threats to an independent judiciary should be a concern in our constitutional democracy. Under the English monarchy, it was not uncommon for the chancellor deciding a case to look to the crown for direction. Consequently, one of the grievances stated in the Declaration of Independence was that the king had undue control over judges, and the Constitution provided for a judiciary that was separate from, and not subservient to, the other branches of government. Our nation's founders recognized that judicial independence is "the most essential characteristic of a free society."2
Of course, the genius behind this scheme is that the constitutional democracy that we enjoy, and that is the envy of much of the world, depends on the judiciary to obey the rule of law. The judiciary compels the government and the people to respect the Constitution and the laws as they are written, even in the face of contrary popular opinion. And because judges do not command a militia to enforce their rulings, the judiciary is ultimately dependent on the respect of the public for its authority. Accordingly, the rule of law depends on public respect for the legitimacy of how courts reach their decisions.
Two Association committees are now working to better educate the public about the importance of the upcoming appellate retention elections and the role of judges. The Appellate Elections Evaluation Committee, ably led by Marc Poster of Greines, Martin, Stein & Richland LLP, numbers more than 40 members, all of whom practice before the appellate courts. As a result of hundreds of hours of work, the committee has published an Election Guide for voters in the November appellate retention election. The guide evaluates each justice on the ballot as either "qualified" or "not qualified." These judgments are based upon an assessment of each justice's integrity and character, intellectual capacity, fairness, experience, industry and diligence, judicial temperament, knowledge of the law, and professional ability, including the ability to write clearly and persuasively. To reach their conclusions, the committee members conferred with judges, lawyers, and others who are knowledgeable about the justices' qualities, observed the justices in court, and extensively reviewed their written decisions.
Each of the ten justices from the Second Appellate District3 and the four Supreme Court justices on the ballot were rated "qualified" by the committee. Significantly, the election guide also explains what appellate justices do, what the retention elections are about, how the committee conducted its work, and what a "qualified" rating means. The Association is making every effort to disseminate this information to the public so that voters can make a valid and reasoned assessment of the justices up for retention.
I strongly encourage you to spread the word about the Election Guide. The full text is easily accessible on the Association's Web site (www.lacba.org). Why not e-mail a copy to your colleagues as well as nonlawyer friends and neighbors?
One of the primary goals of the other committee, the Judicial Independence Committee, led by Steve Bacon of Hill, Farrer & Burrill LLP, is to educate the public about the role of the judiciary in our society. Among its various activities, the committee established an appellate justice speakers' bureau. The committee has contacted more than 1,500 civic, community, charitable, and business organizations and offered to arrange for an appellate justice to speak before them about the importance of an independent, fair, and impartial judiciary. Many such presentations have already been made and more are scheduled. Ultimately, however, it is incumbent upon each of us to do what we can to inform our nonlawyer friends and relatives about the important role an independent judiciary plays in our society and why the judges in the retention election-in the absence of legitimate and valid grounds for opposition-deserve our support.
The Association recognizes that there is a place for fair and informed criticism of the judiciary. Last year, the Association opposed a draft rule circulated for comment by the Central District of California that would have limited the rights of lawyers to criticize judges. We believe that the First Amendment protects criticism of judges and other government officials. The Association endorses the concept that differences of opinion should be settled in the marketplace of ideas rather than through government censure, particularly in the area of fair criticism of judges.
For this marketplace to work, however, unfair, uninformed, and biased political rhetoric must be confronted with facts widely disseminated among the public. However, judges under attack cannot provide these facts to the public. Judges are, and should be, constrained by the canons of judicial conduct from commenting on their rulings in matters pending before them or on appeal. Therefore, in most cases, the organized bar is the only group able to make a substantive contribution to the debate.
The Judicial Independence Committee is working to develop a rapid response mechanism to answer and correct unfair, misinformed criticism of judges, their decisions, and the judiciary as an institution. The evil of unjust criticism is that it saps public confidence in our courts; the answer must be to provide accurate information that the public needs to maintain its faith in the system.
The Judicial Independence Committee will also examine issues concerning the contributions of lawyers to judicial election campaigns. Elections are expensive, and each of us has likely received solicitations from trial court judges, court of appeal justices, and supreme court justices. Where else can they look for their support? While the necessity to campaign for election or reelection is undeniable, and the judges need-and deserve-our support, I cannot help but be concerned about the message that contributions from lawyers who appear before those judges sends to the general public. Over the next few months, the Judicial Independence Committee will review recent recommendations made by the ABA's Task Force on Lawyers' Political Contributions (which includes Ronald Olson from Los Angeles) for revisions to the Model Code of Judicial Conduct and the Model Rules of Professional Conduct. Those recommendations will be considered by the ABA's House of Delegates when it meets in Los Angeles in February 1999.
In this educational process, we've learned a few things about communicating to the public. For example, from our experience and the experience of other groups like ours, it appears that voters do not respond well to calls for an independent judiciary. The word "independent" apparently has a negative connotation in a society that seeks responsiveness and accountability from elected officials. What we really mean is that a judge should be free to decide a case based on the facts and law, without concern for undue pressure from special interest groups-whether liberal or conservative-to conform to a political agenda. In our public presentations we have therefore emphasized the need for "fair and impartial" judges, avoiding the phrase "judicial independence."
Whatever adjectives we use, our society cannot afford to lose sight of the importance of the principle. Historically, it has been our impartial and independent judiciary, not our partisan elected legislators, who have enforced the freedoms articulated in the
Bill of Rights, safeguarding freedom of speech and religion and protecting citizens against unwarranted government intrusion and from unequal treatment under the law. Thanks to Steve's efforts, the Judicial Independence Committee has helped our Association to educate the public on these important issues.
1 See Gerald F. Uelmen, Crocodiles in the Bathtub: Maintaining the Independence of State Supreme Courts in the Era of Judicial Politicization, Notre Dame L. Rev. 1133 (1977).
2 Sam J. Ervin Jr., Separation of Powers: Judicial Independence, 35 Law & Contemp. Probs. 108, 121 (1970).
3 This summer, the governor nominated the Honorable Daniel Curry to the Second District Court of Appeal. Although his name will appear on the November ballot, the committee had no opportunity to evaluate this nominee.