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The California Supreme Court this week essentially handed Gov. Gray Davis — the master of the court’s budgetary fate — the right to do just about anything he wants when it comes to parole. And in doing so justices demonstrated the need for greater vigilance in ensuring that decisions are insulated from the appearance of political consideration. What’s troubling about In re Rosenkrantz, 02 C.D.O.S. 12006, isn’t so much the decision itself — whether Robert Rosenkrantz deserved parole isn’t really the point here. But this opinion must be viewed in light of the judiciary’s continued currying of fiscal favor with the executive and legislative branches. Chief Justice Ronald George, who authored Rosenkrantz, has become an effective advocate for the courts with legislators and the governor. This year, for example, he and his administrative staff staved off the worst of the budget crisis through a series of deft political moves. That, in turn, has kept him from getting into a financial showdown with the governor over the judicial branch budget. George’s role as the court’s politician-in-chief is a necessary one. The judiciary must have someone who can plead its case in Sacramento. But when the people he’s courting are affected personally by his decisions, it might be wise for him to recuse himself to avoid the appearance of a political conflict. Consider Rosenkrantz, a high-profile case that posed a direct challenge to the governor’s power and his core politics. Deathly afraid of a liberal label, the governor has made it clear that he’s not a left-wing softy when it comes to crime. He made his policy on parole extremely clear to newspaper reporters in 1999: “If you take someone’s life, forget it,” Davis said. George’s Rosenkrantz opinion is a masterful display of political dance. It appears at first to strongly exert the judiciary’s right to control the governor’s behavior on parole. But the bar is scandalously low for proving a parole decision is merited, and the opinion’s tone seems so deferential to the executive branch that it makes one wonder if Davis dictated his terms over the phone. Sure, he has to come up with a modicum of evidence if he overturns a decision by the Board of Prison Terms. But the court made it clear that Davis can offer any argument short of “because I said so” if questioned about his parole decisions. George, in his opinion, acknowledges that “the ‘some evidence’ standard is extremely deferential” to the executive. The George court is in dangerous political territory here, and its decision in Rosenkrantz shouldn’t come as much of a surprise. Anyone who thinks the governor and Legislature don’t pay attention when their ox is being gored by justices should remember what happened when the high court upheld term limits. Then-Chief Justice Malcolm Lucas was forced to dine on some nasty-tasting financial crow when the Legislature threatened to gut his budget in retaliation. George has become an adept political advocate for the courts, and by doing so, has shielded his branch from that kind of backbiting. But his political role may undercut the authority of his opinions when executive or legislative branch power is at stake. It’s a logical counterpoint to argue that the court considers overturning legislative and executive decisions on a regular basis. But rarely are they as political as the one in Rosenkrantz. George needn’t recuse himself every time legislation is at stake or a gubernatorial fiat curtailed. But let’s face it: Some cases are inherently political, and everyone on the court knows it. The standard for the chief here should be something akin to the one former Supreme Court Justice Potter Stewart dictated in his famous opinion on pornography: You’ll know a political case when you see it. When George does see it, he should step aside. It will ensure his court doesn’t fall victim to the appearance of placing political expediency before justice.

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