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Fearing Political Backlash, Judges Decide to Go Public
Nasty campaigns and California's gay marriage ruling lead to first forum of its kind
The National Law Journal
July 14, 2008
The rise of nasty political campaigns targeting elected state judges nationally, coupled with the cost of judicial elections and a potential backlash over the gay marriage decision, has prompted California's chief justice to hold the first public forum on preserving impartial courts.
Chief Justice Ron George set out to head off rancorous judicial election contests by launching public discussion of the role of judges in a forum on "Preserving Impartial Courts in California."
Two former California governors with differing judicial philosophies -- Pete Wilson, a Republican, and Gray Davis, a Democrat -- are the main speakers.
"To stick our heads in the sand and ignore the problem would be the worst," said Judge Ira Kaufman of the rural Plumas County Superior Court, who is president of the California Judges Association and a forum participant.
There has been a ramping up of rhetoric nationally in recent years, said Laurie Levenson, a professor at Loyola Law School, Los Angeles and a participant in the scheduled Tuesday forum in Sacramento, Calif.
She pointed to the 2005 comments by evangelist Rev. Pat Robertson that liberal judges are probably a more serious threat to America than a few bearded terrorists who fly into buildings. Last year, Idaho's first female Supreme Court justice, Linda Trout, stepped down after 15 years rather than endure an expensive and divisive election. She had been targeted in an attack ad campaign in the 2002 election.
In Georgia, former Attorney General John Ashcroft recorded an automated phone call saying an incumbent judge was a "liberal activist" who would "stop at nothing to win," according to a 2007 Brennan Center for Justice report.
And in South Dakota, a California-based group pushed a "Jail for Judges" initiative that would allow criminal prosecution of judges for what amounted to unpopular rulings. Voters rejected it, but it set off alarm bells among jurists around the country.
RUMBLINGS TO THE SOUTH
"If we don't pay attention, it could happen here," said Levenson. She noted that early warning signs have come in Southern California with a few efforts to unseat trial judges, all with ethnic-sounding names. "All the judges filed against had Hispanic names," she said.
The most expensive campaign year on record for state Supreme Court candidates came in 2004, with $42 million in spending on races.
Ohio faced a multimillion-dollar election battle for one seat on the Ohio Supreme Court in 2000, making both candidates household names.
Ohio Chief Justice Thomas Moyer, who came to the California forum with a warning, said three statewide election campaigns there were "very negative." Moyer said the concern is not about the candidates' campaigns but the independent campaign organizations that may have a single issue and raise lots of money.
"Those campaigns say to the public, which may not be sophisticated about the importance of judicial independence, that judges are like other public officials; that they have views and they vote their views," Moyer said.
Moyer said the Ohio Legislature has required those outside groups to report campaign contributions, and he believes it helped to tone down the vitriol in the last election cycle.
"People are far less likely to contribute to negative campaigns if their name will be reported," Moyer said.
California has a dual system of judicial elections, with trial judges selected in contested elections for six-year terms. Appellate judges face unopposed retention elections, asking voters thumbs up or down for another 12-year term on the bench.
George, who wrote the opinion allowing gay marriage in California, does not face a retention election until 2009, more than a year away. But a placeholder Web site called RecallRonGeorge.com has already cropped up.
Controversial, big-issue opinions will always be problematic for judges, according to Moyer.
To counter that, the Ohio court has traveled around the state since 1987 for oral arguments, allowing the public and school students closer access to the process. "We are making strides," he said.
George has also pushed the practice hard in California.
