Rights Have Limits

UNDER SUBMISSION

Kenya, 1977. There were seven or eight of us, including the driver and our guide, in an open Land Rover bumping along the uneven terrain of the Serengeti. We were looking for animals, but we came upon a small group of the indigenous Maasai "warriors." There were about 14 of them, young men and boys, herding an equal number of scrawny goats. Each of the Maasai carried a spear and wore what appeared to be a shawl loosely wrapped around his body enabling him to move without restriction.

We stopped and they fanned out around our vehicle. They seemed curious, but peaceful and benign. The tranquil scene abruptly changed when we began snapping photos of them. They yelled and clutched their spears poised to be thrown. "Stop photographing!" I yelled. One of the more dense members of our group (the gradations ranged from 1 to 10, 10 being highly dense) said, "Huh?" Adrenaline coursed through my body, but I calmed down when I noticed the spears were aimed at our tires, not us.

My thick-headed traveler protested that we were on a photographic safari and we had a right to take pictures. I had to explain that even though we had not broken a law, apparently we had committed a serious breach of etiquette. I explained to my fellow travelers that I had read or heard somewhere that the Maasai thought a photograph of them would capture their souls. This fanciful notion was not the case. After a heated negotiation between our guide and the Maasai, the dispute was resolved through a modest payment of money. We drove on for about a mile or two and came upon a Maasai village. Laughing children, women and men came out to greet us. The children were enthralled with the shiny maroon fingernail polish one of the women in our group was wearing. I asked if we could take photographs. No problem. Everyone gathered around us as our guides clicked away.

My insensitive fellow traveler's protest about his right to take photos got me thinking about the upcoming judicial elections this week. I acknowledge that an analogy between the right to run for judicial office and the right to take photos on the Serengeti is a bit strained. And due to my vested interest in the judiciary, my views are suspect and reflect my bias. Nevertheless, I ask to be judged by the quality of my argument. In some situations, those who run for judicial office against a sitting judge are subject to legitimate criticism notwithstanding their "right" to run. I also contend that running for political office is different than running against a sitting judge.

My concern does not focus on those running for an "open seat." Such a seat is up for grabs. And a sitting judge may be fair game for a challenge under appropriate circumstances. Years ago, California had a municipal court. One particular judge on that court seldom showed up for work. He would set hearings and the lawyers would sit around all day waiting for him to appear. On occasion he would come in late, or call in and have his clerk continue the case to the next day when other matters already had been calendared. An investigation revealed that the judge was taking time off to coach his son's swimming team. Many of my colleagues and I strongly supported his challenger who won the election and became a highly respected superior court judge.

Another example from over three decades ago involved an attorney with just over five years experience who ran against a first-rate municipal court judge. The judge's last name reflected his Chinese heritage. His challenger had a Jewish surname. No doubt the challenger hoped that voters in the Jewish community would cast their vote for him because of his name. The Bar rated the Chinese judge extremely well qualified, and his inexperienced challenger not qualified. Jewish newspapers and Jewish legislators all endorsed the Chinese judge and his challenger was roundly defeated.

My concern is about those lawyers who randomly run for election against competent, well respected judges. Without question they have a "right" to do so. But that they mount a campaign against a judge for whom they can find nothing about which to complain is an indication that in most cases such challengers are unsuitable for judicial office. The very act of running reflects poor judgment.

Today three extremely capable women judges on the Los Angeles Superior Court have been challenged by three male attorneys, who have not and cannot articulate any reason why these judges should not be retained. The three judges who should be reelected are: Judge Maren Nelson, Office No. 131, Judge Soussan (Suzanne) Bruguera, Office No. 35, and Judge Laura Matz, Office No. 73. The Los Angeles County Bar Association rated one of the three judges extremely well qualified, and the other two well qualified. Two of the challengers received unqualified ratings. One received a modest "qualified" rating. The Los Angeles Times endorsed all three judges, Matz, Nelson and Bruguera.

I know Judges Matz, Nelson and Bruguera. Judge Matz sat by assignment for six months in my division of the Court of Appeal. She was brilliant and wrote opinions that sparkled with clarity, and reflected scholarship and insight into the law. Three outstanding judges should not have been put through the worry and expense of a judicial election because three lawyers would like to be judges. I urge a vote for these three exceptional judges: Matz, Nelson and Bruguera.

Unfortunately, most voters have no idea who to vote for in judicial elections. A merit selection system in which voters simply vote "yes" or "no" in a retention election would be preferable to our current system. Retired Supreme Court Justice Sandra Day O'Connor has argued for such a system to replace contested elections. Judges would still appear on the ballot, but would be subject to a judicial performance evaluation by an impartial nonpartisan commission that would include public members. In an article published in the New York Times on Sunday, May 23, Justice O'Connor praised the many states that have in place some form of "merit selection" system. It gives the public sufficient information to vote intelligently either for or against their judges and ensures judicial independence.

But why not have a similar system for trial court judges in California? This would ensure that capable judges are not arbitrarily targeted in a judicial election because of an unusual name, or simply because someone wishes to be a judge.

But because we are stuck with the current system for now, I suggest that voters profit from the careful examination carried out by most bar associations in rating candidates for judicial office. I urge voters to look askance at challengers to qualified sitting judges. Our judiciary does not prosper when lawyers, tired of practice, seek to turn out of office well qualified judges who have proved their worth and ability to fairly and dispassionately decide cases.

I submit that a lawyer's right to run against a judge is not the equivalent of an entitlement to do so. "Restraint," we are told, is an admirable judicial trait. I suggest that voters, and challengers to competent judges, keep this in mind.