Shockingly, only about 58 percent of the public vote in judicial elections. It turns out that voters simply don’t turn to the back of the ballot (the judicial elections section) because they don’t know how the state judicial system works or where to find neutral information about the judges.
Yet, the judicial system is the tenet of democracy -- the only nonpartisan branch of government that, first and foremost, should be fair and free to all. This article, the first of a series of articles on judicial elections, looks at the California appellate-level judicial election process, both at the Supreme Court level and the Court of Appeal level.
Few Californians know that Supreme Court justices are nominated by the governor after a rigorous evaluation process conducted by the State Bar of California's Commission on Judicial Nominees Evaluation (JNE). The nominee’s qualifications are then reviewed by the Commission on Judicial Appointments (COJA) with public input.If the commission finds the nominee is qualified to serve, it confirms the nomination. However, it does not end there. The judicial appointee must also be approved by a majority vote of the public at the next general election.
Mariano-Florentino Cuéllar, a Stanford Law professor, recently went through this nomination and confirmation process to replace retiring California Supreme Court Justice Marvin Baxter. It is now up to the public to vote on whether to approve the governor’s appointment of Mr. Cuéllar in the upcoming November 4 election.
Court of Appeal nominees go through the same vetting process as Supreme Court nominees. Court vacancies are filled by governor nomination after critical review by the JNE, confirmation by the COJA, and then approval by the public in a gubernatorial election.
There are three Court of Appeal justices seeking nomination approval from voters in the upcoming election (two in the district that covers Ventura/Los Angeles and one in the district that covers Sacramento).
In addition to new judicial appointments, in the November election, Californians will vote on whether to retain two current California Supreme Court justices, Goodwin Liu and Kathryn Mickle Werdegar. These justices are at the end of their terms and must succeed at this “retention election” or their terms are over.
These are not contested elections; no one may run against a Supreme Court justice. Instead, voters simply decide whether the justice shall continue to serve. If a majority of voters cast "yes" votes, that justice remains on the court for another term.
The same majority vote retention process applies for appellate justices. There are approximately 42 Court of Appeal justices facing retention elections in November, 10 of which sit in the district serving San Diego, Riverside, and Orange County.
The Code of Judicial Ethics requires all judges "to be faithful to the law regardless of partisan interests, public clamor or fear of criticism..." The retention election system, adopted by California voters as part of the state Constitution, is designed specifically to foster judicial independence from improper external pressures.Generally, these justices cannot campaign for retention. The only promise they can make is to decide appeals impartially and according to the law, without fear or favor toward any individual or group.
Increasingly, special interest groups are funding media campaigns designed to influence voters to cast a “no” vote for justices who have made rulings that are not in line with these groups’ political or moral views.
In fact, they spent about $56.4 million on judicial races in 2012 -- that is as much as the previous presidential election. Such politics compromise the judicial branch’s neutrality.
Justices should be selected on their character, integrity, and impartiality, not the popularity of their rulings. A justice’s job is to interpret laws as they are, not legislate new law based on political opinion. But to retain the integrity of a fair and free judicial system, voters should rely on nonpartisan information, make informed decisions, and actually vote in judicial elections.
Before you vote, research your appellate justices! Voters can obtain biographical information on every appellate court justice (select your district and then “Justices”) or the secretary of state’s website.
Information on California Supreme Court justices can be found on the Supreme Court's website and the secretary of state's website. Voters can also review the public discipline summaries and information about pending judicial discipline matters on the Commission on Judicial Performance’s website.
Other nonpartisan resources include the League of Women Voters, the NAWJ Informed Voter Project, Project Vote Smart, and IVN.us. Also, ask your lawyer friends or those you trust who work in the legal community.
If a political advertisement focuses on a particular decision a justice rendered, review the opinion online and look carefully at the facts involved, the applicable law, and the court’s reasoning. Voters can obtain all opinions of any California appellate justice online.
Above all, consider who is paying for advertising about any particular judicial candidate and be concerned if a judicial candidate makes promises or discusses their personal views on politics or popular issues.