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Protections urged for judges

By Nancy McCarthy
Staff Writer

Judicial elections have become so partisan that a constitutional amendment is needed to spare judges from answering political questionnaires during a campaign, former Gov. Pete Wilson said last month. He proposed an amendment that would encourage candidates to not respond to political questions from interest groups that seek answers to hot-button issues.

Such questionnaires would be required to include a box urging candidates to “forbear from exercising their right of free speech” as “wholly inappropriate” to the role of a judge who may have to some day rule on the issues he or she is asked about. “The administration of justice is undermined by the airing of positions,” Wilson told a panel studying threats to the judiciary.

His successor, former Gov. Gray Davis, said most voters “don’t have a clue” about the qualifications of candidates running for judge and recommended that they be subjected to the same rigorous background check by the Commission on Judicial Nominees Evaluation that the governor’s nominees undergo. Rankings should be included in the voter guide and on the sample ballot, he said.

Wilson and Davis testified in Sacramento last month before the Commission for Impartial Courts, appointed in 2007 by Chief Justice Ronald George to study ways to ensure judicial impartiality, particularly in the face of increasingly partisan — and costly — elections for judgeships.

In 2004, $46.8 million was spent in state Supreme Court races throughout the country. In a single race in Illinois that year, two candidates for the Supreme Court raised $9.3 million. The race was not even state-wide, but covered a geographic area.

Last year in Wisconsin, candidates for the Supreme Court nearly doubled the state record for campaign contributions, raising more than $2.6 million. But outside groups spent some $3 million more on television advertisements.

According to Justice at Stake, a nonpartisan group that monitors judicial campaigns, outside groups — not the candidates or their campaigns — spent $27.3 million on television advertisements in four midwestern states between 1999 and 2006.

Justice Ming Chin

Although such high-profile elections have not yet come to California, commission chair Justice Ming Chin said the state cannot afford to become complacent. The commission will consider both proposals by the former governors, he said, as well as other strategies to protect the courts.

“Judges face these questionnaires on a regular basis,” but if an issue they have expressed an opinion about arises before them, they must recuse themselves, Chin said.

Several speakers at the hearing last month cited a 2002 ruling by the U.S. Supreme Court that a Minnesota judicial canon that prohibited judges from discussing political issues in elections was unconstitutional.

Loyola law professor Laurie Levenson said she opposes Wilson’s proposed amendment because “I don’t like going around and constantly changing the constitution. But I don’t like that every judge is being asked to fill out these special interest questionnaires. I think we need to support judges when they say, ‘I would love to but I can’t.’”

In Sacramento, a superior court judge was targeted in 2005 for a ruling in which he upheld the state’s domestic partnership law.

And the state Supreme Court’s recent ruling legalizing same-sex marriages already has provoked criticism of the four justices in the majority. The decision “should prompt outrage from the majority of California’s citizens,” said Ron Prentice, chairman of the Protect coalition backing Proposition 8 on the November ballot. “The will of the people has been completely undermined by four individuals.”

Several speakers said a well-informed public that understands the proper role of judges is key to protecting the judiciary.

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