Targeting Justice: Is California a Democracy?

As Shum-and-Mike wrote yesterday, several right-wingers have been rumbling about recalling any California Supreme Court Justice who votes to overturn Prop 8. For example, right-wing nut Jon Fleischman said:

If the court overturns 8, I think you will be able to count the days before a very organized and well-funded recall of the justices voting to do that will begin. Given the passion on this issue, and the financial resources available, a recall of these justices would be on the ballot lickety-split, and then the justices who didn't believe in the primacy of the voters can understand what it feels like to feel their wrath. … Remember Rose Bird?

Unfortunately, he is correct.  The California Constitution (Art. II, Sec. 13-16) allows for the removal of any “state officer.”  And Supreme Court Justices are “state officers.”  (See Government Code section11005).

If a recall petition is initiated, it must be signed by registered voters equal in number to 20 percent of the last vote for the office. The last vote of a Supreme Court Justice was 5,193,000.  Consequently, about 1 million signatures would be required to recall a Supreme Court Justice.  To put this in perspective, those behind the effort to recall Gray Davis gathered 1.6 million signatures, 1.3 million of which were valid.  They would have 160 days (less than 6 months) to gather the signatures.

In addition to a recall effort, another way the right-wingers can attack our Justices is through their re-election bids.  California requires every Justice to stand for election every 12 years.  In 2010, Ronald George, Carlos Moreno, and Ming Chin stand for election.  Both George and Moreno voted for the majority opinion in In Re Marriage Cases.  Ming Chin voted with the dissent.  It will be much easier for the right-wingers to target Moreno and George in their re-election bids as opposed to a recall campaign because they would not need to file a recall petition or gather signatures.

Follow me to the flip to see why allowing for the recall of a judge violates just about every tenet of a democracy. . .

The U.S. State Department publishes a document called the Principles of Democracy.  This document is used to teach other countries how to create a strong democracy for themselves.  One section is devoted to the Judiciary.  California's law that allows for the removal of a Supreme Court Justice violates just about every one of these principles.  For example:

The power of judges to review public laws and declare them in violation of the nation's constitution serves as a fundamental check on potential government abuse of power — even if the government is elected by a popular majority. This power, however, requires that the courts be seen as independent and able to rest their decisions upon the law, not political considerations.

Judges in a democracy cannot be removed for minor complaints, or in response to political criticism. Instead, they can be removed only for serious crimes or infractions through the lengthy and difficult procedure of impeachment (bringing charges) and trial — either in the legislature or before a separate court panel.


An independent judiciary assures people that court decisions will be based on the nation's laws and constitution, not on shifting political power or the pressures of a temporary majority. Endowed with this independence, the judicial system in a democracy serves as a safeguard of the people's rights and freedoms.


If California is going to resort to removing judges based on the political winds of the day, we do not deserve the title “democracy.”

Disclaimer: I handle product liability cases that could come before the Courts, including DePuy Hip Implant Lawsuits.


14 thoughts on “Targeting Justice: Is California a Democracy?”

  1. It means that we need to get organized.  

    We need to focus some of the vast outpouring of energy on protecting an independent judiciary in California.  

    We need to raise money that can be used to defeat any attack on a Justice for enforcing the Constitution.  

    If we learned anything from Prop 8, it is that a complacent campaign fails; an unorganized campaign fails; a shoddy campaign fails.  

    We need to lay the groundwork now to let all Supreme Court Justices know that we will fight to protect them from those who would threaten an independent judiciary.

  2. …  because that’s the best way I know of to start World War 3 in California if we have Utah and Idaho and Texas trying to pick the justices serving on our state’s judiciary benches.  Talk about meddling.

    What are the funding rules?  

  3. I just don’t see how that many people would get behind a recall of justices.  

    In the days before genuine life w/o parole, the death penalty was vastly more popular than Prop 8 ever was, and I don’t see the Mormons putting the same amount of muscle into a recall campaign.  

    And I have faith that the Supreme Court justices have enough integrity to stand up for equal protection whatever the personal consequences–after all, they have already done so once, six months ago.  

    But it never hurts to be ready for whatever insane tactic the extreme right could pull out of their warped little minds.  

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