Keep Politics Off the Bench

It’s an election year, so voters should prepare themselves for partisanship, promises and petty campaigning. While perhaps not appealing, this is how elections have been conducted throughout American history and our nation has survived and thrived.

Raw electoral politics is an acceptable price to pay for living in a democracy. Yet this virus increasingly infects the branch of our government intended to be nonpolitical: the judiciary. Partisan targeting of judges, bitter recall campaigns and ideological litmus tests threaten to politicize our courts and in so doing, they jeopardize our constitutional system and the freedom it promotes.

There are significant functional differences between the judiciary and the legislature. The legal obligations imposed on each branch justify applying different standards to judicial and legislative elections.

First, judges revere and protect process by applying the same rules to everyone who appears in court. This ensures the fairness necessary for all sides to abide by the decisions made. By contrast, legislators seek results and follow public sentiment, often disregarding process. Legislators correctly consider representation of constituents to be their democratic and constitutional obligation.

Another difference is that in legislative decision-making, things are interrelated, while in judging, only the matter before the court is relevant or proper to consider. A judge must decide on the merits without regard to political ramifications or personal relationships. An effective legislator, however, should evaluate the political consequences of his decisions on other important issues.

Judges are required by the Canons of Judicial Ethics to honor process over results, to disregard personal relationships and information not admitted into evidence when deciding cases. Violation of the canons exposes a judge to possible ouster from office.

Moreover, judicial ethics sharply limit what a judge can say or do in an election campaign.

Although the canons handicap judges under political attack, they are essential to preserving an independent judiciary. It is therefore troubling when, despite the judiciary’s best efforts to act as a nonpolitical institution, some groups attempt to drag our courts into the mud of politics, treating judges like partisan, elected officials. This politicization of the judiciary creates a serious risk to democracy and freedom.

If a judge errs in applying the law to the facts, the aggrieved party can seek appellate review. If the appellate court determines that the judge applied the law correctly, those opposed to that result have a ready remedy: Go to Sacramento and try to change the law.

Politicization of the bench perverts the principle of judicial fairness. It also imperils our fundamental rights and freedoms as Americans, especially free speech and equal opportunity, which historically the courts have protected even when contrary to majority will.

Elected representatives should be ousted when their votes contradict the will of the people they represent. Judges, however, should be removed from office only when they lack the integrity, intelligence or diligence necessary to perform their duties.

When judicial elections resemble partisan campaigns, it is time to question whether the democratic process of electing judges is compatible with maintaining respect for an independent, nonpolitical judiciary.