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Commentary

California Knows How to Rein in the Judiciary



Aside from high taxes, corrupt politicians and bloated government, California isn’t much of a leader anymore. On the other hand, in California the people wield power in the judicial process, a system worth considering at the federal level.

Nominated by the president and confirmed by the Senate, justices of the U.S. Supreme Court may serve for life. In California, by contrast, Supreme Court justices get a twelve-year term and come before the voters at the end of that term, and in the next general election after their appointment.

Thirty years ago, on November 4, 1986, California voters ousted Rose Bird, Chief Justice of the California Supreme Court, by a margin of 67 to 33 percent. Rose Bird was the state’s first female justice and the first Chief Justice to be ousted by a vote of the people.

A 1965 UC Berkeley law grad, Bird had been the first female public defender in Santa Clara County before serving as campaign chauffer for Jerry Brown during his run for governor in 1974. The victor, son of governor (1959-1967) Edmund G. “Pat” Brown, appointed Bird secretary of agriculture, the state’s first woman in a cabinet-level position.

In 1977, Jerry Brown appointed Rose Bird as Chief Justice of the California Supreme Court Rose. Only 40 years old and without judicial experience, Bird seemed to view the appointment as a promotion to royalty. If associate justices wanted to see her, she required them to make appointments. More important, she elevated her own ideology above the law.

In ten years as Chief Justice, Rose Bird heard 64 capital cases and never voted to uphold a death sentence. For example, she overturned the death sentence of Theodore Frank, duly convicted of kidnapping, torturing, raping, murdering and mutilating two-year-old Amy Sue Seitz in 1978.

For staunch death-penalty opponents, even those on the court, it defied belief to think this and other capital convictions were unfounded. Bird also struck down a law, endorsed by Jerry Brown, requiring a prison term for any crime committed with use of a gun.

The voters did not care that Bird was a woman, Patrick K. Brown wrote in “The Rise and Fall of Rose Bird.” Neither did they care that she was an enemy of big farmers and an opponent property-tax reform. Their major concern was that, “from their perspective, Rose Bird did not care about victims of crime.

On November 4, 1986, California voters “flipped the Bird,” as one headline put it. They also ousted justices Cruz Reynoso and Joseph Grodin, both Jerry Brown appointees, who sided with Bird on the death-penalty cases.

The removal of the three judges, wrote Hoover Institution fellow Thomas Sowell, was long overdue because “their rulings often had no basis in the written law, but only in their own social visions.”

For Sowell, lifetime judicial appointments may have made sense back when judges “restricted themselves to a narrow role of applying the written law.” Lifetime appointments, on the other hand, were “a dangerous invitation to wreak havoc in an era when judges see themselves as Robin Hood or Don Quixote, or just little tin gods.”

Even if they do wreak havoc, justices of the U.S. Supreme Court may still serve for life. The high court is a robed politburo that never needs to face the voters.

The nation would do better to assign justices a twelve-year term and give voters a shot at reconfirmation or rejection. As California showed thirty years ago, when the people have that power they will use it to bring about the change they believe in.


K. Lloyd Billingsley is Policy Fellow at the Independent Institute and author of the Independent Briefing, California Water: A Case Study of Bureaucracy Versus Tradable, Private Water Rights.






  • MyGovCost.org
  • FDAReview.org
  • OnPower.org
  • elindependent.org