A time for vigilance

By James Mize
President, California Judges Association

Mize

Threats to judicial independence and threats to the courts occur seemingly with regularity throughout the state and throughout the nation. The latest threat has arisen in my own county in Sacramento. I learned that a distinguished judicial colleague upheld the constitutionality of two legislative proposals. Within 24 hours of his decision, a special interest group was calling for his recall for that single decision.

Further, the group said that the purpose of the recall was not merely to remove the offending judge, but more importantly to send a message to any reviewing court that the same fate would befall them if they upheld his ruling. This special interest group did not want a decision based upon law and fact but upon the political beliefs of that particular interest group.

Can you imagine a world like that?

Throw away your law books. Terminate your subscriptions to Lexis and WestLaw and instead invest your research money in private polling to determine the current directions of the political wind. Tell your clients you cannot predict an outcome of their case unless you first run a survey of the interest groups which have the power or the money to buy a recall. This is not law. This is not a judicial system. This is not America. At best it is another legislative body buffered by the vagaries of passing political whims.

But it is worse than that. A legislator may mount a soap box and attempt to persuade the courts of public opinion. A judge may not do that. A legislator may raise money to support or defend a particular position. A judge may not do that. After the political interest groups remove all the learned judges who decide cases based upon the law and the facts and the constitution, the only remaining judges will simply be bellwethers of the latest political fashion. And with apologies to legal guru Bernie Witkin, a judicial system comprised of such compromised judges “won’t be worth saving.”

What can we do? Be vigilant. Take every opportunity you can to educate your community on the nature of the third branch of government which can raise neither monies nor armies. Remind them of the unique status of the courts, and how they supply the checks that maintain the delicate balance between the current political view of the people and the system of laws which was established by that same people to measure all new legislative efforts.

There is nothing less at stake than the entire system of justice in this country. That is your job. That is my job. Our freedoms, and the country’s very existence, are at stake. I do believe that. We need to stand together in this — lawyers and judges, the AOC and the CJA, concerned and educated citizens. For in the immortal reminder of Benjamin Franklin, “We must all hang together or we will most assuredly all hang separately.”

• This column is excerpted from Judge Mize’s remarks last month when he was sworn in as CJA president.