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The tyranny of the most powerful

By James M. Mize
President, California Judges Association

James M. Mize

California judges, the State Bar and all responsible citizens must respond to a crisis: The threatened recall of a Sacramento Superior Court judge could create for successor judges a system that would be profoundly different from that with which we were blessed when we took office. Last September, Judge Loren McMaster, a learned and distinguished Sacramento 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.

Even more importantly, the group said the purpose of the recall was not merely to remove the offending judge, but 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 group.

If this dangerous idea catches fire, the conflagration could incinerate our entire justice system. The Administrative Office of the Courts could close its doors, for there would be no need for law books, for silly things like statutes, cases and best practices. No, all we would have to do would be to invest our budget in private polling to determine the current directions of the political wind.

The AOC could simply run surveys of interested interest groups that have the power or the money to buy a recall. Of course, it would no longer be law or a judicial system. At best, it would be another legislative body buffeted by the vagaries of passing political whim.

After the political interest groups remove all the learned judges who decide cases based upon the law, the facts and the Constitution, the only remaining judges would simply be bellwethers of the latest political fashion. With apologies to legal guru Bernie Witkin, a judicial system comprised of such compromised judges “won’t be worth saving.”

And just when we thought the recall against Judge McMaster was the nadir of challenges to the judiciary, certain federal politicians commenced a perilous attack on the entire, national third branch of government.

In an April Senate floor speech in which he criticized a recent Supreme Court ruling on the death penalty, Sen. John Cornyn of Texas seemed to be excusing recent incidents of violence against judges and court personnel. It is remarkable that Sen. Cornyn was a judge and a member of the Texas Supreme Court for 13 years. It is even more remarkable that he did not seem to recognize any connection between alleged public dissatisfaction and his own inflammatory comments.

The same week, House Majority Leader Tom DeLay threatened federal and state judges who had ruled in the Schiavo case, saying, “The time will come for the men responsible for this to answer for their behavior.”

Conservative leaders meeting in Washington for a conference entitled “Remedies to Judicial Tyranny” decided that Justice Anthony Kennedy, a Ronald Reagan appointee, should be impeached.

What can we do? For one, we must take every opportunity we can to educate our communities on the nature of the third branch of government, which can raise neither monies nor armies. We must remind folks 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 that was established by that same people to measure all new legislative efforts.

Is there anything else we can do? We can and we must.

In the case of the Sacramento judge, within days of the announcement of the recall, the California Judges Association published a press release deploring the tactics of recalls used as a threat to assure political correctness. I penned a column decrying the threat and calling for support of our fragile justice system. CJA’s Response to Criticism Committee in Sacramento prepared an analysis and plan of attack in the event a formal recall actually commenced. Local bar groups were notified and prominent lawyers were prepared to speak out boldly if and when necessary. The word spread through all these efforts is education.

As long as we have a naive electorate, there will be concomitant, civics-challenged demagogues who will attempt to manipulate the voters to remove all obstacles in their way to a tyranny of the majority, or at least a tyranny of the most powerful, the most vocal or the most thoughtlessly reckless. Thomas Jefferson did not believe our country would be preserved by an electorate; he believed our freedoms would be defended by an educated electorate.

It seems that our adult citizens need a refresher course in basic civics to assist them to grasp the intent and the beauty of a government system of checks and balances with an independent judiciary supported by the conscious choice of our citizens.

I call upon the Judicial Council to institute a new and innovative program of adult civics instruction in this state. I ask the council to commit the resources necessary to defend the judicial system with the strongest weapon at our disposal — education.

If not us, who is going to do it for us?

If not now, how long before it will be too late?

While we have men and women fighting a real flesh and bullets war in a foreign country, I normally avoid the application of war jargon to persuade. Often, such abuse of vocabulary demeans the life and death risks our soldiers take daily. Nevertheless, in this case I make a conscious exception. For if we cannot stem the threatened destruction of the judicial system in this country, then with all the sacrifices our military is making throughout the world, there would be nothing left here for them to save.

This column is adapted from recent remarks Judge Mize made to the Judicial Council.

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