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Background - An Overview

On November 4, 1986, there will be a confirmation election for six of the seven justices of the California Supreme Court: Rose E. Bird, Joseph R. Grodin, Malcolm M. Lucas, Stanley Mosk, Edward A. Panelli, and Cruz Reynoso. All California Supreme Court justices face a confirmation election for all or part of their 12-year term, depending on when they were initially appointed.

Any California Supreme Court justice who is not confirmed will be replaced by an appointee of the Governor, currently George Deukmejian. Before joining the court, the Governor's appointees must secure the approval of the Commission on Judicial Appointments.1

California's upcoming November 1986 judicial confirmation election is the subject of unprecedented controversy and concern. At the center of the debate is Chief Justice Rose Bird, whose reconfirmation is opposed by a variety of groups throughout the state. Because so many charges and counter-charges have already been leveled, it is difficult to get a clear picture of what the issues are, and what is at stake.

This document utilizes a pro/con format to examine a composite of the best arguments for and against Chief Justice Bird's confirmation. For the sake of perspective, we have included two historical sections; one which details the evolution of California's current system of judicial confirmation elections, and the other which gives a brief legal history of the death penalty. Throughout the document, we have also provided Association of Media Accuracy (AMA) commentaries which are intended to verify, clarify, and/or give background information on relevant issues.

History of California's
Judicial Selection Process

From 1849 to 1934,2 California's state constitution called for contested judicial elections, held every ten years. Judicial candidates campaigned just like other candidates for political office -- making speeches, raising money, stumping for votes, and cutting political deals.3 In the early 1900's, California courts were dominated by the Southern Pacific Railroad and other large corporations.4 Judge John Perry Wood, former head of the American Bar Association, said of the pre-1934 California judicial elections: "At election time the judges...and the candidates for the bench spread their names over the country by every method known to advertising. They were billboarded like a popular soap; sidewalks and public halls were littered with cards extolling the merits of candidates asking to be permitted to sit in judgment over the lives and property of the people. Contributions were solicited from firms frequently in court. One candidate collected $50,000 for a position that paid $10,000 a year."5

The movement to reform California's judicial selection process took hold in the early 1930's. In a speech before the Los Angeles Bar Association in 1932, Judge Wood recommended that a committee be formed to study and produce a plan to replace the "sorry spectacle" that judicial elections had become. The Los Angeles Bar Association formed a committee which drafted a plan calling for the Governor to make judicial appointments from a list of names submitted by a nominating commission, and judicial tenure subject to a periodic, noncompetitive vote of the people.6

In 1933, Berkeley City Manager Hollis R. Thompson urged San Francisco's Commonwealth Club to sponsor a constitutional amendment calling for a new system of selecting judges in California. "Cases are frequently decided from the standpoint of the emotions of the people," Thompson complained.7 As the debate grew, the California Chamber of Commerce offered an alternative to the Los Angeles Bar Association's plan. The Chamber recommended that a commission confirm, rather than nominate, a judicial candidate selected by the Governor. This was the compromise plan,8 Proposition 3, sponsored by San Francisco's Commonwealth Club and approved by voters in 1934.9

Above all, the new system of judicial selection was designed to free the state's judiciary from political influences. In a June 1934 speech to the Los Angeles Bar Association, the Association's President, William H. Anderson, asked "Is there any question but what every right-thinking citizen should do everything possible that would tend to rescue our judges from the foul pool of practical politics?"10 Since Proposition 3 was approved in November 1934, every California Supreme Court justice running for confirmation has been approved by the state's electorate.11

AMA Commentary

The judicial selection process varies from state to state. Federal judges, including United States Supreme Court justices, are appointed to their posts for life.

1 For membership of the Commission and details on the succession process, see the California Constitution, Article VI, Section 7.
2 California Constitution, Article VI, Section 16, resulting from the passage of Proposition 3 in 1934.
3 Leland, Clyde, "The Compromise of 1934," California Lawyer, September 1985, p. 37.
4 Mowry, George, The California Progressive, UC Press, 1951, pp. 140-141, Cited in Murray, Anthony, "Understanding Retention Elections," California Lawyer, September 1985, p. 11.
5 Winters, Glenn, R., "Judicial Selection and Tenure," in Judicial Selection and Tenure, Glenn Winters, ed. American Judicature Society: Chicago 1967, p. 36.
6 Ibid. p. 33.
7 Leland, p. 37.
8 Winters, p. 33.
9 Murray, supra.
10 Anderson, William, "The Selection of Judges," California State Bar Journal, June 1934, p. 159.
11 Stolz, Preble, "This Election is a Test of Public Confidence in the Court," California Journal, June 1985, p. 250.