Recall Specter Hangs Over California Supreme Court

Last Saturday, I argued that the case of Rose Elizabeth Bird, the late Chief Justice of the California Supreme Court, who was rejected at the polls in 1986, should be the model for today's Yes on 8 proponents contemplating political options in the event that the Ronald George court decides to strike down the November 4th ballot measure.

It turns out, as the Los Angeles Times reports, that the state high court is fully aware of the possibility of an electoral backlash should a majority on the bench overturn the wishes of a majority of the state's voters:

Six months ago, California's highest court discarded its reputation for caution and ended the state's ban on same-sex marriage.

Now the moderately conservative state Supreme Court is being asked to take an even riskier step -- to overturn the November voter initiative that reinstated the gay-marriage ban and possibly provoke a voter revolt that could eject one or more of the justices from the bench.

The court is under intense pressure from all sides. Its first response to the challenges may come today, when the justices meet privately in a weekly conference to decide which cases to accept for review.

Legal scholars say case law does not give the court a clear path for overturning the voter-approved measure. The state high court -- six Republicans and one moderate Democrat -- generally defers to the will of the people. Only twice has the court rejected initiatives on the legal grounds cited by opponents of Proposition 8.

Despite the uncertainties, Gov. Arnold Schwarzenegger has said publicly that he expects and hopes that the state high court will reject Proposition 8.

Atty. Gen. Jerry Brown, whose office must defend it, opposed the measure, and 44 legislators have called on the court to overturn it.

Civil rights groups, churches and local governments have filed six lawsuits asking the court to declare the measure an illegal constitutional revision. Letters also have poured into the court pleading for urgent action, and anti-Proposition 8 rallies have attracted large crowds statewide.

At the same time, opponents of gay marriage have warned that they will work to oust any justice who votes against Proposition 8, a threat particularly palpable in a year when voters in other states have booted six state high court justices after campaigns by special interest groups.

"It is a time of lots of crocodiles in the bathtub," said Santa Clara University law professor Gerald Uelmen, who has followed the court for decades. "Their oath requires them to ignore these kinds of political threats. But the threat of having to face a contested election is a significant one."

Uelmen used a metaphor coined by the late California Supreme Court Justice Otto Kaus, a Democrat who served on the court with Chief Justice Rose Bird before voters removed her and two justices over their opposition to the death penalty.

Kaus later said that as hard as he tried to decide cases impartially, he was never sure whether the threat of a recall election was influencing his votes.

"It was like finding a crocodile in your bathtub when you go to shave in the morning," Kaus said. "You know it's there, and you try not to think about it, but it's hard to think about much else while you're shaving."

The folks at Firedoglake aren't too thrilled about it, calling backers of a likely recall campaign "the forces behind inequality" and a bunch of "crazy supporters."

There's a bitter irony here for the leftist progressive "H8ers": California's true progressive reformer, Governor Hiram Johnson, in 1911, empowered the voters of the state with the initiative, the referendum, and the recall. He also established non-partisan elections for judicial officials, which was the mechanism that removed Chief Justice Bird in 1986 after she refused to permit capital punishment in the state.

Now, of course, today's so-called "progressives" (neo-Stalinists, actually) reject the most important political reforms in California history, since they allow popular majorities to go over the heads of the currupt and inefficient elected officials, as well as members of the judiciary, to direct public policy themselves.

The will of the voters will prevail on this issue. The same-sex marriage activists need to try again at the ballot box after a few election cycles have passed. If the demographics are really trending toward the gay agenda of radical secularism, these folks should have nothing to worry about.