Political Posturing in Judiciary Committee

MAY 19, 2010


In what appears to be political posturing, on May 18 the Assembly Judiciary Committee held an oversight hearing titled, “Judicial Elections in California: Threats To The Perception of Fairness.”

The committee heard three presentations. The first was on the potential impact of the U.S. Supreme Court’s decision last January in the Citizens United case, which ruled that Congress couldn’t limit corporate and union funding of independent political broadcasts in candidate elections. The second part was devoted to the Caperton Case and “implications of fairness in the Judiciary.” That case spotlighted a coal company executive who spent $3 million to help elect a West Virginia justice. The third and final issue presented in the hearing was the “growing concern” about judicial elections and recommendations for impartial courts.

Erwin Chemerinsky, Dean of the University of California, Irvine School of Law was the presenter against the Citizens United case and its effects on California Judicial elections.  Chemerinsky expressed his concern about corporate spending on elections and suggested that publicly financed elections would answer the problem.

“Once the judicial election begins, Judges are politicians,” said Chemerinsky. Warning that corporations spend money to keep judges on and off of the bench, Chemerinsky said that elections can and do affect the impartiality of judges. “In all instances, Judges are interpreting the law to the best of their ability, but they are making law for the state of California,” he added.

Committee Chair Mike Feurer, D-Los Angeles, said that independent expenditures are just a way of “gaming the system.” They’re also much more difficult to regulate. An independent expenditure is usually a political advertisement, intended to assist or oppose a political candidate, and is made without the candidate’s approval or direct knowledge. Chemerinsky agreed, adding that people behind independent expenditures always know the intent of the political advertisements.

Assembly member Charles Calderon, D-City of Industry, said that Citizens United was “a horrible case” and equated the outcome with corporate influence used during the Obama health care debate.

With the Citizen United decision, the Supreme Court overturned a provision of the McCain-Feingold legislation enacted in 2002, as well as one of its own rulings. The decision has drawn frequent rebukes from President Obama, who is quoted as saying that it would empower “special interests and their lobbyists” at the expense of “average Americans who make small contributions to support their preferred candidates.” Obama even criticized Citizens United during his State of the Union address.

Since federal law supersedes state law, this appears to be political posturing, unless state Democrats are anticipating that Congress might legislate around the Citizens United decision.

The Caperton Case and its implications for perceptions of fairness in the judiciary was presented by Stanford Law School’s Professor of Public Interest Law, Pamela Karlan, who is also a former Commissioner of the Fair Political Practices Commission. “Money only matters in elections as a translation to votes,” said Kaplan, claiming that big business interest and money distracts the entire judicial process.

Kaplan said that right before an election, judges’ sentences get tougher, effectively proving that they are “using the lever that effects voters.” Facing electoral retaliation, judges’ careers are on the line with every election, according to Kaplan.

Kaplan stated that surveys have revealed that most average citizens do not know anything about the judicial system, or even how their own states operate. “People do not understand what they are voting on,” said Kaplan. She added that most people cannot even name the branches of government, whether their states had a constitution or if judges are elected or appointed.

Kaplan’s solution is to make it unattractive for corporations to spend money on elections by making the contributor lists more public and exposed in advertisements. She also discussed the issue of when judges recuse themselves from cases that involve campaign donors, explaining that the amount of money should not be the sole issue. According to Kaplan, judges responsible for organizing hundreds of people for political campaigns are just as conflicted as those who accepted donations.

The argument of appointed or elected judges vary, and Kaplan reminded the committee that other types of people might consider the Judiciary if there were not elections involved. Since judges always have to consider what they will do if they lose an election, Kaplan argued that their decisions must be effected by elections.

The third and final presentation was by Ming Chin, Associate Justice of the California Supreme Court, and Chair of the Commission for Impartial Courts.Chin has experienced both judicial appointment and election. He was appointed to the California Supreme Court by Governor Pete Wilson in 1996, and won retention election November 1998.

“In California we have a very good judicial system,” Chin said. He added that because all  judicial nominees are closely evaluated, there are checks and balances in place. Longer judicial terms would thus mean fewer elections, resulting in a possible improvement to the system. Chin added that once elected judges become politicians, they shouldn’t be treated like other politicians.

Feurer asked the presenters for their recommendations and to identify the most important step the legislature can take in fending off corporate funded political commercials. All three  said that education of the public is the most important aspect, starting in schools.

When Feurer asked for public comment, Justice Arthur Scotland of the 3rd District Court of Appeals rose  from the audience. Scotland said that legislators should not let perception prevail over reality. Scotland offered that he has worked for five different governors in 23 years and has never had been driven by political views.  “Judges are not politicians, have no constituency and do not make policy,” he said.

Scotland warned of unintended consequences in the form of mischief. Scotland explained that there will be those who deliberately take advantage of any new rules by forcing judges into recusal positions in order to get them off particular cases. “I can see someone making contributions to get a judge to recuse himself,” he said.

Calderon added his support for educating the public, but asked that the Legislature take a “consensus view” to the public. “We’ve got to speak with one voice so we are patriots, not partisans,” he said.

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