THE REPUTATION of the California Supreme Court, once mighty, began to crumble last fall. Its chief justice, Rose Bird, was the object of a bitter flight between the friends and enemies of Gov. Jerry Brown, who had appointed her, and the appointment required confirmation by the voters. On election day, a newspaper reported that the court had actually help up its decision in a case involving a popular state law solely to improve her election chances.
The hullabaloo was huge - and got more so when she won a bare 52 percent of the vote and it turned out that she had cast a decisive vote on the court holding the law in question unconstitutional. Eventually, the state's Commission on Judicial Performance began a proceeding to determine whether the court had acted improperly.
It is that proceeding which has stripped the court of its reputation for reasoned and careful judgments, revealing it as torn by pettiness and politics. Justice William Clark, an appointee of former governor Ronald Reagan, testified that Chief Justice Bird has snubbed him ever since he wrote a certain footnote last August. She testified that the footnote was one of several traps Justice Clark had set to "embarrass and demean" her, apparently in an effort to get her defeated at the polls. There has been much more. Two justices have engaged in a swearing match about who said what to whom when. Another is challenging the whole proceeding as unconstitutional. Chief Justice Bird has barely avoided being charged with contempt. This look behind the judicial scenes is unusual. But the bickering its has revealed is not. Other courts - including the U.S. Supreme Court - have been torn by internal strife while the justices still maintained an exterior appearance of calm and civility. Putting all that conflict onto the public record, however, may make it impossible for these justices to work together again.
Is the question the California hearing is attempting to answer worth the price? All courts hold up announcements of decisions for any number of reasons, some honorable and some not so honorable. It is a little much of expect justices to ignore the effect of a controversial decision on an election involving one of its members. Maybe they should, but they are not isolated from the real world. The question is whether they can and should be.
If you believe that questions of constitutional interpretation should not be decided by popular vote, that judges should not be influenced by political expediency, and that courts should not play political games, the dilemma is total - at least so long as judges are elected. The disclosure of the existence of the underlying problem may be the only useful accomplishment of the California hearing.