Excerpt: CHIEF
California Lawyer

Excerpt: CHIEF

The Quest for Justice in California

December 2013

Chief: The Quest for Justice in California
by Ronald M. George
Berkeley Public Policy Press, $40, 822 pages, hardcover

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Soon after his retirement, California's 27th chief justice, Ronald M. George, agreed to sit for a series of twenty in-depth interviews with Laura McCreery, who directs the California Supreme Court Oral History Project at UC Berkeley's Institute of Governmental Studies. George recalls the highlights of his extraordinary career at every level of this state's judiciary, including 20 years on the Supreme Court (nearly 15 as chief). He also speaks his mind on a wide range of issues, including the role that partisan politics has played in our state's courts. In the following edited excerpt, George discusses with McCreery the impact of judicial elections.

Q: The influence of out-of-state money in the 2010 general election was of great interest to judiciaries across the country. What did you observe about Iowa, where three Supreme Court justices were voted out?

They were ousted because of their vote on a gay marriage case that reached the Iowa Supreme Court. In fact, there was even a follow-up effort- I don't know whether it's gotten anywhere- to impeach the other four justices who had not been on the ballot but who had also participated in the case.

Believe me, I'm not a fan of judicial elections, but given my experience and observations, I would much prefer- even having had a contested retention election in 1998- to face the voters every 12 years with a yes or no vote than go through the highly politicized confirmation process engaged in by the U.S. Senate in recent years.

Look at someone like California Supreme Court Justice Goodwin Liu, whose nomination couldn't even get a floor vote in the U.S. Senate for 15 months and then had to be withdrawn by the president. He subsequently joined the state system by appointment of Governor Brown, was rated exceptionally well qualified by the State Bar, and easily sailed through his confirmation hearing. The process took five weeks from the date the governor announced his appointment, to his taking the oath of office.

What are some good alternatives to the way things are now?

I've come to the conclusion that even though I believe California's judicial selection system is probably the best that exists in the United States, our system is still not immune from the very destructive forces that have been unleashed in recent years and that are on the rise nationally.

If I were designing a judicial selection system from scratch, I would provide that a justice is appointed to the Court of Appeal for a 12-year term pursuant to the existing procedure of appointment by the governor, with evaluation by the State Bar commission, confirmation by the Commission on Judicial Appointments, and confirmation by the electorate, although only after an opportunity to serve at least two years on the appellate bench before facing the electorate, so that there would be a track record upon which to judge that justice.

I would want those same procedures to be followed for appointments to the California Supreme Court, with the exception that the appointee be limited to a single term of 15 years and not appear before the electorate for confirmation. The elevation of an associate justice of the Supreme Court to the position of chief justice would not extend beyond the 15-year limitation.

Why 15?

I believe that's a reasonable trade-off for permitting a gubernatorial appointment without legislative or electoral confirmation. There is precedent, of course, in the existing length of term of 12 years, which is close to what I propose, and there are some states that have 15- or 16-year terms- which I believe to be the longest terms provided by any American jurisdiction.

This approach refrains from giving someone a life term. Perhaps a life term could be justified and would be politically feasible if there were to be a confirmation process that involves the California Senate, as exists now for U.S. Senate confirmation of federal judicial appointments. But I'm convinced that if California had a process requiring confirmation by the state Senate for appointments to the Supreme Court, legislative confirmation of these appointments would become just as politicized in Sacramento as it is in Washington, D.C., and we would all be the worse off for it.

Much as I've been concerned about the threats to judicial independence that come from special interests- whether they're based in California or out of state- and the threat to judicial independence that arises from the use or misuse of the electoral process in our selection of judges, I believe that a significant threat to judicial independence actually comes from another source- one that, perhaps surprisingly, emanates from within our very own ranks, that is, the ranks of California's judiciary itself.

This recalls, at least for those of us who used to read the comics pages some time ago, the possum philosopher Pogo, who made the famous pronouncement, "We have met the enemy, and he is us."

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