ELECTION BLOG SUPPLEMENT -- DISAGREEMENT, THE POLITICAL PROCESS AND JUDICIAL RETENTION ELECTIONS

To Retain or Not Retain, That Is the Question

I always wonder, a little, about how my election blog posts are taken. 

But not necessarily the way you might think I do.

A number of friends and acquaintances have let me know that they disagree with one or more of my recommendations.  They seem to expect a reaction from me.  They seem surprised when I tell them that I am absolutely fine with their disagreement and that I perceive my mission as one of empowerment.  I go into rather more detail than other sources principally to equip my readers so that they can make their own choices.  I can readily see why they might not agree with me.

For example, I am sure that there are many readers who do not share my view about bonded indebtedness.  A strong, perhaps for some, compelling case can be made why a particular project is so important that it is worth incurring the debt (or not worrying about it).  Almost invariably the state and local propositions that are financed by bonded indebtedness are worthy.  To me the question is how government should approach these problems responsibly and making sure that voters know just what they are authorizing (and the cost).

When I re-read my post, I also realized that I was extremely dismissive of the statewide Republican candidates -- a Republican reading this blog (if there are any) would quite rightly be offended.  But there is a reason for my offhandedness.  There was a time when the Republican Party advocated, genuinely or not, a philosophy of limited government and maximizing space for private enterprise that I could understand even if I did not agree with it.  There were even such things as "moderate Republicans" and "Civil Rights Republicans."  My part of San Francisco was represented for decades in the State Senate by the late Milton Marks, for whom I voted year after year.  "Uncle Miltie" was a Republican until he switched parties -- I don't know that he said it but I will -- his party moved away from him, not the other way around.  So when I look at the Baby Trumps and wannabe Trumps who seem to dominate the Republican ticket, I don't even care to mention their names.   If and when the Republican Party denounces its deal with the devil we will have something to talk about, but not until then. 

Going back to the issue of disagreement with my posts, I was a little surprised at the reaction of one reader, who indicated his disagreement with my general recommendation to vote to retain all the Supreme Court and Court of Appeal justices up for retention.  He focused on California Supreme Court Associate Justice Carol Corrigan.  He wanted me to know that he thought Justice Corrigan should not be retained because of what he described as her vote “against the landmark ruling in 2008 legalizing gay marriage.”

I took another look at Justice Corrigan’s opinion.  If anyone is interested, you can access the entire supreme court opinion, including Justice Corrigan’s concurrence and dissent, via this link (Justice Corrigan's opinion is found at page 84).

The essence of Justice Corrigan’s dissent was her disagreement with the court majority on whether the supreme court had the constitutional power to declare that same sex unions must be accorded the label of “marriage.”  If that sounds a little awkward, there is a reason.  Readers may not remember that before the case came before the supreme court, the California Legislature had enacted a statute authorizing same sex unions that had all the earmarks of a marriage except the name.  Justice Corrigan’s disagreement was not with the concept of same sex marriage – she began her opinion with the following statement:  “In my view, Californians should allow our gay and lesbian neighbors to call their unions marriages.” Her objection was to the court declaring same sex unions as marriages as a function of judicial power and constitutional law.  

Constitutional law is a difficult concept for lawyers, much less the general public.  One aspect of it is the absolute necessity for courts to exercise restraint in overturning actions of the State Legislature and the People (since in California the people have the power to enact both laws and constitutional amendments through the initiative process).  Courts are antimajoritarian institutions – their legitimacy in matters of constitutional law in very great part derives from being credible when they declare something to be so out of bounds that it is unconstitutional.  

What makes this even more complicated, though, is that so much of constitutional law comes from the gut (or as my parents might have said, in Yiddish, the “kishkes”).  Constitutional law is value laden in a way that other areas of the law are not.  I found Constitutional Law as a law school subject incredibly frustrating for that reason – case after case made no sense to me as a matter of any value-neutral analysis – commercial law made much more sense to me and it is probably no coincidence that I followed that interest to become a commercial litigator.  

One judge’s take on a problem based on his or her values is not going to be the same as that of another judge.  In the area of same sex marriage, the divergence, and perhaps my reader’s concern, also arises from how one perceives the issue.  If one views same sex marriage as a human rights issue, then I can see why my reader would be particularly concerned (and even exercised) with Justice Corrigan’s opinion.  But if you look at the issue the way judges and lawyers typically do, I really do not have a problem with her approach – I recall having quite a few questions myself back in 2008 as to whether it was constitutionally sufficient (or even constitutionally required) to have a system of civil unions, much less recognizing such unions as marriages.  (And it may well be the case that a straight male like me is going to see this differently than a member of the LGBT community.) 

In one respect, moreover, the supreme court’s majority may have fulfilled Justice Corrigan’s most dire predictions – later that same year the people of California approved Proposition 8, overruling the state supreme court until Prop 8 was itself struck down by the ruling of a single federal judge (upheld ultimately on procedural, not substantive grounds, a matter that greatly concerned me when I did a blog post at the time – here’s a link).  My recollection is that the state supreme court’s ruling was used by the proponents of Prop 8 as a reason why the state constitution had to be amended – to stop what they regarded as judicial usurpation.  With the benefit of hindsight, I also can’t help but wonder if it would not have been better for the people of California to have had a chance to vote to repeal Prop 8 (which I am confident they would eventually have done) rather than have yet another court decision overturn it.

In addition, while I hope I can appreciate the depth of feeling here, one of the problems with adjudicating constitutional law in this manner is that there are others out there who will, and in fact are doing the same.  I am referring to anti abortion advocates, who also regard their issue as one of human rights – that helps explains their incredible tenacity.  It also helps me understand them a bit better when I realize this.  But do we really want our judges deciding issues of constitutional law based on deeply held personal beliefs as opposed to making at least some effort to approach the use of judicial power cautiously and incrementally (and within a framework that at least tries to be dispassionate and objective)?  My reader is entirely within his rights to disagree with me – but I think that disagreement comes with some pretty significant baggage in terms of how we want our judges to decide issues of constitutional law.

And don’t forget that the people of California voted out three supreme court justices back in the 80s, at least one of whom, former Chief Justice Rose Bird, was almost certainly voted out because of her deep-felt opposition to the death penalty (here's a CBS Evening News clip you might find quite instructive).  The pendulum swings both ways once you embark on this course.

I think (and hope that) I appreciate the reasons behind my reader’s opposition but I am still voting to retain Justice Corrigan.