California's high court gets a dunking in politics

By decades of tradition, state supreme court elections here are supposed to be ho-hum affairs.

California, however, has seldom been accused of being traditional. This fall, a series of Republican-led attacks on the state Supreme Court not only threaten the careers of three high-court justices, but also raise questions about the independence of the judiciary.

Judicial observers say that voters nationwide are growing increasingly restless with the judiciary, particularly on crime-related issues. But it's here in the Golden State - where voters get a chance every 12 years to have a say on whether justices stay on the bench - that such dissatisfaction is becoming a major electoral issue, says Larry Berkson of the American Judicature Society.

In all, 36 states have either a yes/no vote on retaining justices or contested elections in which sitting justices run against other aspirants to the high court. Only three states have life appointments.

''California is a pretty unique situation,'' explains Mr. Berkson. ''Most supreme court elections are just sort of matter of course. They don't create much of an uproar.''

Still, the November election here has sparked a debate that transcends state boundaries: how to balance what many legal experts welcome as an increasing public scrutiny of the courts against the judiciary's historic ability to function independently of public pressures.

''You have to strike a happy medium,'' warns Berkson. ''The fear is that you will subject decisions of judges to a majority will of the people. If that happens, we'll be in trouble according to the traditional philosophies of our Founding Fathers. . . . Historically, judges are not supposed to take in public opinion polls and public pressures.''

The case in California revolves around three high court justices - Otto M. Kaus, Cruz Reynoso, and Allen E. Broussard - who have been targeted for defeat by Republican-based groups and GOP candidates. All three were appointed by Gov. Edmund G. Brown Jr. (Another justice, Frank K. Richardson, also is up for a once-every-12-year approval by voters. But since he's an appointee from Ronald Reagan's days as governor, conservatives have not campaigned against him).

No high-court justice has been voted off the bench since California adopted retention elections in 1931, one of a number of reform measures pushed through by the ''good government'' movement of that era. But the justices' margins of victory have dropped steadily in the past two decades - reflecting both a growing public skepticism of the courts and, in recent years, a perception that the state's liberal-minded high court is out of step with most Californians.

''I think there comes a point when a legitimate question comes up in a democratic society,'' says Gideon Kanner, a professor at Loyola Law School in Los Angeles. ''That is, has the judiciary's perception of right and wrong gone so far out of the mainstream of that society that people are concerned and alarmed? If they are, they can express it through the ballot box.

''They [justices] cannot become some kind of priesthood beyond the reach of people in a democratic society,'' he adds.

Many legal observers here defend the public's constitutional right to criticize - and vote out - high court justices. But some note that voting along strictly partisan lines can lead to destructive results. In particular, they cite the possible loss of Justice Kaus, who is widely considered - by liberal and conservative legal observers alike - to be one of the most brilliant justices appointed to California's Supreme Court in recent years. These same experts contend, however, that the present situation poses no immediate threat to the independence of the state's high court.

''If you don't like the way the Supreme Court votes, you have a right to vote them out,'' says Preble Stolz, a University of California, Berkeley, law professor who has written a controversial book on the court.

But, he adds, ''I hope the justices are not defeated. These things go in pendulum swings. For 40 years the court has been very aggressive and quite liberally dominated by one end of the spectrum. The pendulum will swing sooner or later - it may already have begun to swing back.''