Rightly or wrongly, the perception of Chief Justice Bird was that she was unwilling to follow the clear mandates of the California Constitution. It was not primarily a matter of a perception that she was "soft on crime."
If I recall correctly, the people amended the Calif. Const. to make it perfectly clear that the death penalty did not violate the Calif. Const., and the US S. Ct. had made it clear that the death penalty could be imposed without violating the US Constitution. Yet Chief Justice Bird, if I remember correctly, voted against imposition of the death penalty in every case that came before her, and in doing so gave arguments that were an extreme reach. I remember one case in which a robber fired multiple shots at a victim from close range (killing the victim), and CJ Bird was unconvinced that there was an intent to kill.
I respect people who refuse to have anything to do with the death penalty, but a judge who refuses to follow the law is not acting as a judge. She should have recused herself if she could not follow the law.
Non-Californians may not know that, in the judicial retention election that resulted in Chief Justice Bird losing her position, there also were strong claims that she was willfully misconstruing the Calif. Constitutional provision known as Prop. 13, which involves limitations on taxation. Again, one can disagree with the policy behind provisions like Prop. 13, but it is no part of a judge's job to refuse to enforce constitutional provisions with which she disagrees.
To the extent that a constitutional scheme gives voters the right to hold judges accountable for their faithfulness or lack thereof in applying the law--and to consider whether the judge is imposing the judge's own policy views in the guise of following the law--it is perfectly appropriate for voters to evaluate that faithfulness in deciding whether to retain a judge.
Mark Scarberry
Pepperdine
Unfortunately what we have seen is rejection on other grounds than noncompliance with constitutions. The classic example was the nonretention of Justice Rose Bird in California, because it was perceived that she was "soft on crime" for her death penalty rulings. We see a consistent pattern of voters voting for or against judges and prosecutors depending on whether they promise to be "tough on crime", regardless of what that might mean to due process. We also see the attitude among too many jurors: "Convict 'em all and let God sort 'em out."
We don't get constitutional justice by elections, and we don't get it from appointments. No one can be trusted to select the people who make judicial or other decisions. Not officials and not the people. It is time to try something else.
On 11/01/2010 09:54 PM, Volokh, Eugene wrote:
in many states, we do have such a system. And I see no reason why the people of the state, in whose name the state constitution is created, can't act to remove their servants based on those servants' highly contestable interpretations of that state's constitution.
-- Jon
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