REGULARS

OPINION

Chief Justice Ron George and Associate Justice Ming Chin were challenged because of their votes to strike down a state law requiring parental consent for abortions sought by juveniles.

They joined Justices Kathryn Werdegar and Joyce Kennard in holding that the state constitutional guarantee of privacy protected the right of choice of those old enough to become mothers. American Academy of Pediatrics v. Lungren (1997) 16 Cal.4th 307.

Justices Stanley Mosk and Janice Rogers Brown also will be on the ballot but have not been targeted for defeat because they dissented in American Academy of Pediatrics.

The challenges are being mounted by an alliance of right-to-life groups and right-wing extremists in the Republican party. At the time the challenge was announced, these forces apparently felt confident that, if George and Chin were defeated, their replacements would be selected by a Republican governor.

As the campaign of Republican Dan Lungren has faltered and Gray Davis has surged ahead in the polls, much of the steam that drove the initial challenges seems to have evaporated.

Both George and Chin mounted aggressive fund-raising efforts, and their success may also have served to quiet the anti-retention forces. Neither can rest easy, however. In retention elections, judges are literally "sitting ducks," and pot-shots can come from any direction.

One risk may raise special concern. Some spiteful Democrats, anticipating a Davis victory, may be tempted to vote "no" just to create some Supreme Court vacancies for the new governor to fill. Those who are still smarting from the 1986 purge, which removed three Democratic appointees from the court to be replaced by a Republican governor, may welcome an opportunity for political payback.

That risk may be exacerbated by Lungren's gubernatorial strategy of trying to link Davis to former Gov. Jerry Brown and Chief Justice Rose Bird. Republican politicians have been regularly resurrecting Bird to serve as a campaign punching bag for 12 years, but Lungren's effort to do so may undercut Democratic support for George and Chin.

The link between California judicial retention elections and gubernatorial politics is just not coincidence. We set ourselves up for the quadrennial crossfire by constitutional provision that schedules Supreme Court retention elections only in gubernatorial years. That's a dumb idea, and it should be changed.

Justices should be on the next statewide ballot after their initial appointment. That would have the added advantage of focusing the election on their qualifications, rather than a referendum on the popularity of decisions they already rendered since their appointment. Justices must be allowed to shed party labels, and labels that link them to the governor who appointed them.

When one does focus on qualifications, there is little question but that all four justices on the ballot deserve resounding affirmation. A good place to start in assessing how justices should be evaluated is the Code of Judicial Conduct first formulated by the American Bar Association under a committee headed by Chief Justice Roger Traynor, one of the greatest chief justices of California's Supreme Court. The canons define the ideals of official conduct for every judge, and they include:

1) That a judge should uphold the integrity and independence of the judiciary;

2) That a judge should avoid impropriety and the appearance of impropriety in all of his or her activities; and

3) That a judge should perform the duties of his or her office impartially and diligently.

In all of these respects, Chief Justice George and Associate Justices Mosk, Chin and Brown have earned our enthusiastic support. We should put gubernatorial politics aside and judge them on their individual merits.

California lawyers have an enormous stake in the outcome of this election. When justices are singled out for challenge because of the unpopularity of one decision or another, it becomes ever more difficult for them to decide cases without regard for the public clamor that might ensue.

Try as they might, how can judges truly ignore the threat that their vote in a particular case will put them on the political treadmill for a statewide campaign? Regardless of our party affiliation, every California lawyer benefits from a judiciary that is truly independent.

A resounding "yes" vote can deliver an important message: that special interest political agendas deserve no place in California judicial retention elections.

Gerald F. Uelmen is professor of law at Santa Clara University School of Law and publishes annual reviews of the California Supreme Court.