This appeared in today’s edition of Capitol Weekly. As we approach the decision on Prop 8, it is important that we remember the critical role of the judiciary.

Back on Nov.12, Capitol Weekly published an opinion by the Flash Report’s Jon Fleischman entitled “When considering Proposition 8, remember Rose Bird.” His populist threat against a branch of government that is very intentionally designed to be counter-majoritarian deserves admiration for its moxie, if not its intellectual rigor.

Mr. Fleischman’s threat would be of little concern if it had been directed to the Governor or to a member of the Legislature. After all, the executive and legislative branches are supposed to be reflective of popular will. They are supposed to consider the will of their constituents when they make decisions. But by threatening judges, Mr. Fleischman attacks the important counter-majoritarian role that the judicial branch serves in our government. In so doing, he has attacked the foundations of our democracy and its delicately balanced separation of powers.

In drafting our nation’s constitution, James Madison urged protecting minority factions from the “tyranny of the majority.” In Federalist Number 10, Madison argues that under direct democracy, the rights of weaker minorities will inevitably be sacrificed on the altar of popular opinion.  Such democracies, said the father of our Constitution, “have in general been as short in their lives as they have been violent in their deaths.”

Throughout our country’s history, minorities have looked to the counter-majoritarian judicial branch to provide protections that the populist executive and legislative branches refused to provide. The most notable of these cases is Brown v. Board of Education. In 1954, the Supreme Court decided that racial segregation in schools was unlawful because it violated the Equal Protection Clause of the Fourteenth Amendment. Reaching this unanimous opinion required the Supreme Court to ignore strong public opinion in favor of segregation. In short, it required the Supreme Court to exercise its power as an independent and counter-majoritarian branch of government.

There’s more over the flip.

In his article, Mr. Fleischman asks “what kind of hubris would a Supreme Court Justice have to show to justify overthrowing a Constitutional Amendment (Proposition 8) as… unconstitutional?” Although rhetorical, this question demonstrates a critical lack of historical perspective. After all, the constitutional challenge to Proposition 8 is not the first time oppressed minorities have challenged a constitutional amendment passed through the initiative process. And when the Supreme Court strikes Proposition 8, it will not be the first time the courts have exercised their responsibility to temper the will of the majority by striking a constitutional amendment as . . . yes, unconstitutional.

In 1964, Proposition 14 passed with an overwhelming 65 percent of the vote. Supported by similar groups as Prop 8, including the California Republican Assembly, Proposition 14 repealed the Rumsford Fair Housing Act and amended the California Constitution to allow property owners the unfettered right to refuse to rent or sell to people based upon their race, religion, sex, or physical handicap. In striking down Prop 14, the Supreme Court found that the voters of California overstepped their constitutional authority and violated the Equal Protection Clause.

The obligation of the Supreme Court to protect minorities from the tyrannical will of the majority applies equally to Proposition 8. Supreme Court Justice Joyce Kennard made this point saliently in her concurring opinion in In Re: Marriage Cases when she said that “Whether an unconstitutional denial of a fundamental right has occurred is not a matter to be decided by the executive or legislative branch, or by popular vote, but is instead an issue of constitutional law or resolution by the judicial branch of state government.”

But the Chief Justice, at least, has faced this down before.  In 1998, the right-wing came after him because they disagreed with an abortion related opinion.  The conservative movement has a history of challenging judges from the right, without a similar response from the left. The net result is a pressure to drift to the right. However, Chief Justice George has done an admirable job of resisting the pressure and making his decisions based upon the law and the facts before him. While I can certainly say that there are a slew of his opinions that I strongly disagree with, his integrity in those decisions is beyond reproach.

So, to those like Mr. Fleischman who threaten the judiciary, consider the fact that you are attempting to throw dirt on the form of governance that Madison and our founders built for us hundreds of years ago.  Do we really want justices who only protect rights when it is politically convenient?  The independence of our judiciary is simply too important to risk for an ephemeral political issue.  

Xavier Becerra, a Congressman from Hollywood, is at the least being strongly considered for the post of US Trade Representative and may have already accepted the job.  Becerra is in the House leadership as Vice President of the Democratic caucus, and while he voted for NAFTA he has since regretted doing so, and he led the fight against CAFTA and other trade agreements which he felt did not have the proper safeguards, or labor and environmental standards.  And channeling my inner David Sirota, the fact that pro-business conservatives are worried about the direction Becerra will take US trade policy confirms that he would be an excellent choice:

And now Business Week reports on some rumblings of opposition from the pro-business and free-trade camp:

Philip Levy, who’s now with the conservative American Enterprise Institute, told the mag that the choice is “troubling,” arguing that “to oppose Nafta is in many ways to lash out symbolically against trade.” A business lobbyist added to the mag that he and his colleagues are “pretty concerned.”

Well, I’m sold.

If Obama brushes off the concerns of the American Enterprise Institute (and really, everyone should) and Becerra gets the job, a very safe Democratic seat in the heart of Los Angeles would be up for grabs.  Considering the density of the city it’s actually a pretty large district (with lots of it in rapidly gentrifying Hollywood), and has a good deal of Latino voters.  However, this would be up for grabs in a special election, and the universe of special election voters is probably a smaller Hispanic universe than on a normal Election Day, so I wouldn’t say that only a Latino candidate could win here. In fact, LA City Council President Eric Garcetti represents a good portion of the district on the council.

Garcetti would be a progressive leader in the Congress and a major upgrade.  Becerra is a member of the Progressive Caucus and generally solid on the issues, but he’s not particularly outspoken, and as part of the leadership team, wouldn’t stray too much from the party line.  On the other hand, Garcetti is a smart, committed young leader, a Rhodes Scholar at Oxford and a graduate of the London School of Economics who has led on so many progressive issues in the city it’s hard to even count them all.  It would be great to have someone in the Congress with the background of dealing with key urban issues from graffiti to housing to development, while at the same time having led on important national initiatives like clean money, the war in Iraq (the LA City Council was among the first to pass a resolution opposing it) and renewable energy.  Garcetti jumped aboard the Barack Obama campaign from almost the very beginning as a California chairperson, so he would be able to tap that network of organizers pretty easily.  He would make a fantastic member of Congress, among the best in the nation in my view. (and that’s not just because he appeared on Calitics Radio on primary election night!)

Rep. Becerra would get to set trade policy, and Los Angeles would experience no dropoff in leadership.  Everybody wins!

UPDATE: In this LA Times article, Sen. Gil Cedillo is also mentioned as a possible candidate.  I’m a fan of Cedillo’s as well, particularly his leadership on the DREAM Act and his advocacy for comprehensive immigration reform.  Garcetti is quoted in the article saying “it was premature to speculate on a possible run but did not rule it out.”

Today, the Democratic Legislative Leaders proposed ACA 4, which would eliminate the 2/3 vote requirement for a budget passed before the Constitutionally mandated June 15 deadline. Check out Speaker Bass chatting about the plan; it’s got some stuff that we need, but there’s still a lot more to be done.

Some other proposals out there are SCA 5 by Loni Hancock, which would also eliminate the 2/3 budget requirement as well as changing the ability to put some votes into referendum and the effective dates on other bills.  Mimi Walters (R-OC) has SCA 1 to allow a simple majority for any budget that doesn’t exceed the previous year’s budget by 5%.

These are all piece meal measures.  The 2/3 vote for the budget is certainly important. It’s allowed the Republicans to hijack the budget to get at unrelated bills (see their attempts at attacking AB32’s carbon limits last year). In the good times, the budget vote is really the most important vote of the year.  Eliminating the 2/3 requirement would be a boon, especially when we have a Democratic governor.

However, in order to build a more perfect government, we need to look at more than just the budgetary vote.  As we’ve seen, we can’t do a whole lot with a majority budget vote if the majority doesn’t also control both the spending and the revenue sides of the equation.  Thus, the more powerful measure is one that ends both the 2/3 majority on the budget and the 2/3 majority on taxation.  As of right now, I don’t think such a measure has been filed.

But, there is another way: the Constitutional convention.  In fact, Assemblyman Sam Blakeslee, R-San Luis Obispo, and new State Sen. Mark DeSaulnier, D-Martinez have both filed resolutions calling for a constitutional convention. DeSaulnier’s is Senate Concurrent Resolution 3.  A convention would probably be our best chance to really get a government that works.

All of these will be pretty difficult to get out of the legislature.  We might be able to get some of compromise that looks something like Walters’ SCA 5, but real reform might take a bit longer to emerge from the Legislature.