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December, 2006


California Court Leaders Dodge Responsibility for Attacks on the Judiciary
By Barbara Kauffman

The Judicial Council of California held a 3-day "Summit of Judicial Leaders" in San Francisco November 1-3, 2006 for more than 300 state court leaders. Participants included superior court executive officers and presiding judges from almost all of California's 58 counties, as well as administrators and administrative presiding justices from California's six appeals courts.
According to a press release disseminated by the Judicial Council, the purpose of the Summit was to "explore the challenges that America's courts face due to recent developments in judicial elections and attacks against judges by political and special interest groups."

Speakers included, among others, retired US Supreme Court Justice Sandra Day O'Connor; Bert Brandenburg, Executive Director of the Justice at Stake Campaign, political and media consultants, lawyers and law school professors.

The pervasive theme of the conference was one being trumpeted by the judiciary at similar conferences held throughout the country; that is, the need to "protect the independence of the judiciary" from those seeking to oust, influence, criticize or regulate the bench.

Issues discussed at the conference included the problems raised by judicial candidates speaking out and making promises during judicial election campaigns; how to handle political attacks on the judiciary; the threat of well-financed special-interest groups influencing judicial elections and decisions; and attempts to regulate the judiciary via legislation.

O'Connor expressed concern that the judicial election process has changed with the influx of special interest group money and noted that while our country has a history of "periods of unhappiness with judges", the unhappiness with judges today is at a "very intense level." She expressed concern about current challenges to judicial independence, but also pointed out that "judicial independence must be coupled with accountability."

Participants received a variety of suggestions and advice as to how to fend off threats from judicial challengers, special interest groups and critics. Unfortunately, many of the suggestions and discussions evidenced something of a "bunker" mentality designed to create a judicial "incumbent protection plan" rather than to ensure the fairness, impartiality and accountability of the judiciary.

Darrell Steinberg, Of Counsel of Hanson, Bridgett, Marcus, Vlahos & Rudy LLP, recommended that the judiciary "build as big a wall as possible and play defense." He suggested extending trial court judicial terms to reduce the number of elections a judge must face. Currently, trial court judges serve for a term of six years and then must run for re-election if challengers sign up to run against them. He also suggested "tightening up judicial qualifications" required of those running against incumbent judges to limit the pool of challengers. (One speaker later commented that this could backfire if a challenger has better qualifications than the incumbent judge.)

Judge Terry B. Friedman of the Los Angeles Superior Court discussed the possibility of public financing of judicial elections, but cautioned that this could "empower challengers" and "open the floodgates" for those who otherwise couldn't afford to run.

Political consultant Hal Dash advised judges to set up their own websites to promote themselves on an ongoing basis, and to use "surrogates" to "talk tough" about opponents.

Consultant Sally Stewart of SA Stewart Communications also advocated for the use of technology by the judiciary. She recommended the use of websites and "podcasts" so judges could "bypass reporters who screw up your message."

Bert Brandenburg provided a refreshing departure from the "bunker mentality" by echoing O'Connor's call for judicial independence coupled with accountability. He focused on the public perception of the judiciary and ways to fulfill the public's desire for judicial accountability. He referred to a 2005 public opinion research project commissioned by the Justice at Stake Campaign indicating that Americans want courts to be "fair and accountable to the law and the Constitution, not political pressure and special interests." According to the research, 84% of those questioned "strongly agreed" and another 10% "somewhat agreed" with the statement that "we need strong courts that are free from political influence."

Brandenburg referred to prior polls commissioned by the Justice at Stake Campaign, which indicated that 3 out 4 voters and 1 out 4 judges believe campaign contributions affect judicial decisions. He said voters are shocked that attorneys give money to judges before whom they appear. (The polls are available at

Brandenburg noted that the judiciary has received a "black eye" because some judges fail to disqualify themselves from hearing cases that come before them when circumstances warrant it.

Brandenburg suggested the use of "judicial performance evaluations" to monitor judges and provide accountability to the public, and recommended that judges render detailed judicial opinions in cases in their courts to educate the public and explain what, how and why the court did what it did.

Brandenburg suggested regulating campaign practices through campaign oversight committees comprised of "wise men and women" who could "blow the whistle" on improper campaign conduct. He also recommended a practice of inviting judicial candidates to voluntarily sign campaign pledges limiting campaign conduct.

Brandenburg noted that many voters fail to vote for judges because they know little about them. He recommended that candidates engage in voter-focused education, including the use of informative websites containing campaign materials, public forums and most importantly, voter guides providing information about judicial candidates.

Participants and panelists at the Summit appeared to unanimously agree that there is growing unrest with and attacks on the judiciary. Strikingly absent from many of the discussions or presentations at the Summit was any meaningful acknowledgment that improper conduct of some members of the California judiciary contributes to that unrest. Judges who act improperly "give the judiciary a black eye" and contribute to that unrest. Judges who are appointed based on political and financial connections or contributions to politicians rather than superior qualifications, experience, reputation and ethics contribute to that unrest. Judges who take campaign contributions from the attorneys and litigants who appear in cases before them contribute to that unrest. And good, honest judges, judicial oversight entities, and lawyers that turn a blind eye to improper judicial conduct are responsible for that unrest.

Americans want fair and impartial judges who are free of political influence. We want our Constitutional rights protected and enforced. As the United States Supreme Court explained in Marshall v. Jerrico, Inc., 446 US 238, 242 (1980), "The Due Process Clause entitles a person to an impartial and disinterested tribunal in both civil and criminal cases."

If the judiciary fails to protect our rights by adequately policing errant members of the bench, the American people will naturally become unhappy and find other ways to regulate the bench. That is the beauty of our system of checks and balances.

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