How to Judge?

The danger inherent in voting for California Supreme Court justices was underscored again last week when Gov. George Deukmejian said that his decision on whether to support Justices Cruz Reynoso and Joseph R. Grodin would depend largely on their votes in death-penalty cases between now and November. This is the wrong basis for deciding.

The state already has one Legislature. Like all legislatures, it responds to the wishes of the majority. The court has a different function. It safeguards the rights of minorities when they get brushed aside in the Legislature. Political pressure threatens that role.

To be sure, voters may apply any standard they want in voting to retain or remove the justices who are up for confirmation this year. But deciding on the basis of short-term political goals, which the governor thinks is appropriate, ignores the fact that the structures of government are designed for a long-term view. True conservatives know that it is in their interest to preserve the judiciary. Elected governments and political climates change. The political spectrum swings back and forth. The governor before Deukmejian was Edmund G. Brown Jr., and before him it was Ronald Reagan. Through it all, the court has been insulated from the moment’s political winds, and it should remain that way.

Deukmejian’s comment assumes that it is proper to vote justices up or down on the basis of the outcome of their cases. Wrong. He didn’t ask: How did they reach these outcomes? What was their reasoning? What does the law say in this case? Are they correct in protecting the rights of criminal defendants? All of these are crucial questions. It is not simply a matter of, well, if the justices send killers to the gas chamber they’re all right, and if they don’t, throw them out. Yes, the voters have endorsed the death penalty. But the voters are not free to violate basic constitutional rights in pursuit of that end. The courts are properly the protectors of those rights, but they can’t fulfill that role if the voters are going to throw the justices off the bench for doing their job.

The only valid question for voters to ask in considering whether to retain a justice is whether he or she is competent and honest. The question should not be: Would I appoint this person to the bench? Rather, it should be: Should this person be impeached? Any other standard could destroy the third branch of government, whose role is to safeguard the most fundamental principles of this democracy.