LA Times Editorial: A court battle California doesn’t need

The Supreme Court’s ruling last week in the case of a grandiosely unethical West Virginia justice opened a new field of constitutional review — the high court may now consider when an elected state court jurist has been so tainted by politics that due process requires him to recuse himself from a case.

In West Virginia, a coal executive spent more than $3 million to unseat a sitting state Supreme Court justice; it was money well spent, as the justice was defeated by voters and replaced by Brent Benjamin. Benjamin then did what was expected of him and cast a deciding vote in overturning a $50-million jury award against the executive’s coal company.

Benjamin’s participation in the case assured him a place in the judiciary’s annals of shame, and his corruption was so blatant that the U.S. Supreme Court majority that rebuked him argued that it was not opening the door to many future challenges. Surely, it reasoned, no justice will behave this badly again. That may or may not prove to be true — the court offered little in the way of guidance as to what constitutes impermissible political influence — yet Benjamin’s case sadly but surely will not be the last in which big-money politics and judicial independence collide.

Indeed, California has wrestled with this problem before — and quite possibly could again.

California’s system for selecting Supreme Court justices is much better than West Virginia’s. Candidates for the court here are nominated by the governor, confirmed by a state commission and then placed on the bench. They must periodically stand for retention, but they are not, as they are in West Virginia, subject to direct challenge by rival candidates. A retention election can cost a justice his or her seat, but it does not let voters kick out one justice and install their own replacement.

California’s rules have helped balance the judiciary’s independence with the public’s fair insistence on accountability, but even this state’s reasonable retention process has been subject to tilt. Most notable was the 1986 retention election that removed Chief Justice Rose Bird and two associate justices, Cruz Reynoso and Joseph Grodin. Much reflection has gone into that race in the decades since, and opinions differ on its merits. Two truths, however, stand the test of deep inquiry: The forces arrayed against Bird were not motivated solely by her opposition to the death penalty — that was cover for a second complaint, which was her defense of consumer rights against corporate power — and Reynoso and Grodin were victims of a special-interest crusade against a vulnerable chief.

Would that we could relegate that episode to California’s history. In fact, the state rumbles with discontent over its high court and chief, and those stirrings contain alarming echoes of the battle of 1986.

At issue are the court’s rulings on same-sex marriage and Proposition 8, and its chief justice, Ronald M. George. In May 2008, the court overturned the state’s ban on gay marriage, striking a victory for civil rights in the grandest tradition of constitutional protection of minorities. A few months later, after voters approved Proposition 8 and amended the state Constitution to ban the same institution that the court had upheld, George and his colleagues upheld the amendment. Both times, George wrote for the majority. He thus angered opponents of gay marriage in 2008 and supporters of it in 2009.

By California’s rules, George faces a retention election in 2010, and some predict that he could face challenges from either side — or even both — in this polarizing debate.

That would be a shame for the state’s judiciary, an unfortunate attack on judicial independence and an unfair castigation of one of this state’s most principled and admirable public officials. In the gay-marriage cases, George’s votes demonstrated conscience, professionalismand restraint. He voted to uphold same-sex unions out of the strong conviction — which this page shares — that the Constitution does not allow society to deny the protection of marriage to gay couples any more than it once denied it to those united across race. The ruling was right on the law, and will certainly be validated over the long march of history.

Months later, voters tacked in the other direction, narrowly rejecting gay marriage and amending the Constitution to allow California to recognize only the unions of heterosexual couples. That was challenged, naturally, and the lawsuit offered the court the opportunity to extend its earlier ruling, though on shaky constitutional grounds — advocates for same-sex marriage argued that Proposition 8 was such an affront to the rights of Californians that it revised the Constitution rather than merely amending it. Scholars split on the merits of that argument, and although the strong consensus of legal opinion rejectedit, an opportunistic justice might have seized the chance to solidify his legacy.

Instead, George subordinated his politics — as evidenced by his writing — to the weight of constitutional opinion. He voted to uphold the proposition, even though it undid his own work. Permitted latitude within the strictures of the Constitution in the first case, George was able to vote his conscience; bound by the Constitution in the second case, he yielded.

Such is the lot of a principled judicial officer, but those concerned only with results already have signaled their unhappiness with George. The moneyed interests that supported Proposition 8 last fall are considering whether to finance a campaign against George next year. Supporters of gay marriage, who championed his heroism in 2008, were bitterly disappointed when the court upheld the hateful initiative.

This is not West Virginia. Corporate interests are not knocking off justices who disagree with them and seating more accommodating replacements. But intimidation has no place in our judicial life any more than it does in Appalachia. The 1986 campaign against Bird and her colleagues now stands for many as a reminder that well-intentioned systems of accountability may be hijacked by special interests, a lesson learned too often and at great cost in California. It was misguided in its first iteration; it would be regrettable in its second.

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Burundi urged to repeal law criminalizing homosexuality

Human Rights Watch, Amnesty International [advocacy websites] and 60 other groups on Friday urged the Burundian government [joint statement text; press release] to repeal a new law criminalizing homosexuality [JURIST news archive] in the country. The law was promulgated by President Pierre Nkurunziza [BBC profile] on April 22, and subjects those found guilty of engaging in a homosexual relationship to a fine or up to two years in prison, or both. The groups said that the law violates the Burundi Constitution, the International Covenant on Civil and Political Rights, the African Charter on Human and Peoples’ Rights, and the Universal Declaration of Human Rights [texts] and would harm anti-AIDS efforts in the country:

We consider the law to violate the rights to privacy and freedom from discrimination protected by Burundi’s Constitution and enshrined in its international treaty commitments, notably the International Covenant on Civil and Political Rights, the African Charter on Human and Peoples’ Rights, and the Universal Declaration of Human Rights. We deeply regret that the Burundian government has made a decision that writes human rights violations into law.

We regret that the law will hamper Burundi’s attempts to fight AIDS, by further marginalizing an at-risk population.

We respectfully remind the Government of Burundi that according to the United Nations Working Group on Arbitrary Detention, arrests on the basis of sexual orientation are, by definition, human rights violations. We will carefully monitor any arrests made on the basis of this law.

The law was passed [JURIST report] by the country’s National Assembly in November despite being rejected by the Burundi Senate the previous February. See Burundi urged to repeal law criminalizing homosexuality

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Lambda Legal Urges Unbiased Nominees to Fill 54 Federal Bench Vacancies

‘The foremost consideration in nominating federal judges should be their commitment to rendering decisions impartially.’
(New York, January 15, 2009) — As inauguration day draws near, Lambda Legal sent a letter to President-Elect Obama and the leadership of the Senate Judiciary Committee, explaining the monumental need for fair and impartial nominees to the federal bench who will address issues facing the gay community without bias.
“In the coming years, a number of key issues that significantly impact the gay community are likely to arise in the federal courts,” said Lambda Legal Executive Director Kevin Cathcart, “The foremost consideration in nominating federal judges should be their commitment to rendering decisions impartially.”
During his two terms, President Bush appointed 326 judges to the federal bench.
“It is no secret that the Bush Administration’s goal was to pack the federal courts at all levels with arch-conservative judges who would be unfriendly to the vigorous protection of civil rights — not only for gay people, but for everyone,” said Cathcart.
“To start, President-Elect Obama will have 54 vacancies to fill and we hope that those nominees can provide balance to what has become a federal system that is often hostile the gay community,” added Cathcart.
Today’s letter is a follow-up to a memo Lambda Legal provided to the Obama Transition Team. It urges President-Elect Obama to nominate federal justices who adhere to precedents established in cases of importance to the gay community- including the right to privacy, protection against laws based on antigay bias, the right to sue in state courts under the Americans with Disabilities Act (ADA) and protections against HIV discrimination, among others.
Finally, the letter seeks to promote judicial integrity through nomination of jurists who represent the nation’s diversity including people who identify as lesbian, gay, bisexual, transgender, people of color, women, and those with public defender and public interest legal backgrounds.
To read the full text of the letter submitted, please visit Lambda Legal’s website www.lambdalegal.org or the email version of this press release includes an attached PDF of the letter.

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Judge Herbert Donaldson dies: ‘A born jurist’

Herbert Donaldson, a retired Superior Court judge who was widely known in San Francisco for his role in gay organizations long before it was either acceptable or fashionable, and for his tenure as one of the city’s more compassionate and community-oriented jurists, died Friday at his home in San Francisco, surrounded by his friends and his three cats.

Judge Donaldson, who was 81, died from the effects of pancreatic cancer, according to his longtime friend and companion Louise Swig.

Back in 1983, Judge Donaldson, at the time a well-known criminal defense and neighborhood legal rights attorney, was named to the Municipal Court bench in a midnight appointment by outgoing Gov. Jerry Brown. The headline was, “Gay Lawyer Picked for S.F. Bench” – that angle being news at the time.

The Chronicle played up the fact that he was “the first gay male judge in San Francisco,” and noted that he had been “a leader in gay groups since 1960 and was a founder of the Society for Individual Rights, one of the nation’s pioneering gay groups.”

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