When we read about controversial judicial elections or appointments, we usually find that the underlying cause of the controversy is excessive partisan involvement with the supposedly independent judiciary.
Golden State residents tend to forget that overly partisan elections or appointments to the bench rarely occur in Marin, other California counties or to the state Supreme Court.
This past week’s pivotal election for one Wisconsin state Supreme Court seat is an example that the judiciary is tied to the Democrats, the Republicans or their associated ideologies in many states.
Whether the case’s issue is voter suppression, abortion, redistricting or worker and business disputes, the Badger State’s four-person Republican majority in the top court votes as a partisan block.
Its three-member minority is aligned with Democratic policies. Wisconsin’s election resulted in a liberal defeating the GOP-aligned incumbent, instantly shifting that court’s majority from the political right to the left.
This represents a bipartisan perversion of the judiciary in a democracy. The idea of even electing judges is seen by European attorneys, not to mention attorneys all over the English-speaking world, as a strange American oddity.
At the U.S. Supreme Court, it’s understandably perceived that five of the nine justices are “conservatives” lining up with Republicans and the other four are “liberals” sympathizing with Democrats.
Our nation’s Founding Fathers would be astonished. They didn’t even believe political parties should exist, much less influence the judiciary.
Marin County has 11 Superior Court justices. When I was a trial attorney, only rarely did I know or care that a judge was appointed by a Democratic or Republican governor. I can’t recall a Marin court decision that’s been slammed as “political” or ideologically based. That’s as it should be.
Nonpartisan appointment of judges stems from California’s golden age of reform in the first quarter of the 20th century.
As the Marin Superior Court’s website explains, “There are two ways that attorneys may become judges. They may be elected (to six-year terms) by the voters in the county in which they will serve in an open election, or they may be appointed by the governor to serve out the remaining term of an incumbent judge who leaves office before the end of his or her term.” In practice, the latter is more common than the former.
While politics is a factor when California governors make judicial appointments, most governors’ appointees now mirror the Golden State’s political and ethnic diversity. Marin didn’t have a woman on the bench until 1982 when Gov. Jerry Brown appointed Beverly Savitt and Lynn O’Malley Taylor was elected.
There’s little payback for the sitting governor. I once heard Gov. Pat Brown say, “I hate judicial appointments. All I get is a bunch of unhappy lawyers who didn’t get the job and one ingrate (the appointee).”
Not every Bay Area judge meets the ideal. When judge-related problems arise, they usually aren’t political or even ideologically based. It’s that the woman or man wearing the robe lacks the essential quality of judicial temperament.
Complaints about individual judges in Marin and around America tend to come from parties in family court. In my 45 years before the State Bar, I tried hundreds of divorces, custody disputes and child support motions. Each county’s family law department hears cases that intimately affect the litigants’ lives. The proceedings are infinitely more personal than a civil suit over money. Lose a bitter child dispute and the inevitable reaction is to blame the judge.
Voters need to protect judicial independence. When on the rare occasion a judicial post comes before Marin’s voters, look for the qualities of judicial temperament, character and professional competence. Ignore a candidate’s past political involvement.
The Marin legal community expects judges to rise above party and honor their oath to follow law wherever it leads.
