NOVEMBER 28, 2008
BIRD IS NOT THE WORD
Judicial recalls are extremely rare
By JOSHUA SPIVAK
The California Supreme Court's decision to accept a petition looking to overturn Proposition 8's ban on gay marriage came with an unsurprising response from some of the initiative's backers — threats to recall any justice who votes to overturn the initiative. After their triumph in getting Proposition 8 passed in the face of a Democratic Party tidal wave, and coupled with the successful Gray Davis recall of 2003, these proponents of potentially removing the justices must feel that it would not be much of a stretch to recall a judge. But they would be wrong.
History shows that successful recalls of judges are exceedingly rare. They are so infrequent that the most famous judicial recall in the popular mind — one that reporters have cited in the wake of the Prop. 8 threats — turns out not to have been a recall at all. In 1985, California Chief Justice Rose Bird and Justices Cruz Reynoso and Joseph Grodin were removed from office in a mandatory retention election. It was a historic vote: These three judges were the first ever removed in a retention vote. But kicking a judge out in a retention vote is unquestionably a much easier feat than a recall. Despite this basic fact, many people still mistakenly think they were recalled. The Los Angeles Times made that error in a contemporary headline: "Few Rules to Go By: Justice Bird's Recall Becoming Epic Battle," one they corrected three days later. Bird did face a number of recall attempts, but tellingly none ever got to the ballot.
It is even hard to say when California last recalled a judge on any level. There have been news stories that cite a recall in 1932, and the most comprehensive book of the early use of the recall, which was written in 1930, notes that four municipal judges and three justices of the peace were recalled and removed. But clearly no judge has been kicked out by recall in over half a century.
That's not to say there haven't been plenty of attempts, but they don't get to the ballot box. One very similar example occurred just a few years ago, when Superior Court Judge Loren McMaster, who ruled in 2004 that two California domestic partner measures did not violate the Defense of Marriage law from Proposition 22, was threatened with a recall. It never got on the ballot.
The failure of the recall of judges is not just a California issue. Throughout the country, there have been no shortage of recalls in recent years, but few of them have been launched against judges. The most notable were in Wisconsin, which had two recalls, both against lower court judges who made egregiously inappropriate comments from the bench against sexual assault victims. The first, in 1977, resulted in a removal. The judge in the second recall campaign in 1982 kept his seat.
The fact that it is so difficult to recall a judge would be no surprise to California's original recall proponents. When the state originally adopted direct democracy in 1911, the only part that received strident opposition was whether the recall should be extended to judges. Gov. Hiram Johnson expressed grave doubts that the judicial recall provisions would get through the Legislature, as many of his own progressive supporters in the Legislature were against the idea. In fact, were it not for a fortuitously timed California Supreme Court scandal, the state's judges may not have been subject to the recall at all.
The debate over judicial recall quickly caught fire in other places across the country. William Howard Taft vetoed Arizona's Constitution because it allowed the recall of judges. It may have had a major effect on U.S. presidential politics. In 1912, this veto, coupled with Theodore Roosevelt's qualified support for the recall of judges, and a long-forgotten provision calling for recall of judicial decisions, became one of the key policy differences that helped split the Republican Party, pushing Roosevelt to run on the Progressive (Bull Moose) ticket. The recall, not Roosevelt's breaking of the third term idea, may have cost him the support of key Republican backers and helped elect Woodrow Wilson.
Despite this daunting history, the recall backers have two main reasons for any optimism. One is the fact that once a recall gets to a vote, it has about a 50 percent or greater chance of success. That's because, typically, voter turnout is dramatically lower for a recall. The voters have to be aware of the special election and care enough to come out to vote just for the one race. Those who turn out are often highly motivated by animus.
The second reason is the Davis experience. The Davis recall got on the ballot due to a number of particular circumstances, including opponents willing to dedicate millions of dollars to the effort and the fact that California is a prodigious user of initiatives, which helped create a very well-developed signature-gathering industry in the state. Both of these circumstances are clearly present in a judicial recall.
Just as important in the Davis recall were two relatively hidden factors. One is that California's governors face the lowest signature-gathering requirement of any elected officials in the country. Signatures equaling only 12 percent of votes cast in the previous election are needed to qualify the recall. The other is that the 2002 election had the lowest proportional voter turnout in the state's history. Therefore, to get the Davis recall on the ballot, its backers needed the signatures of less than 5 percent of the state's eligible voters.
A judicial recall involves different numbers, and a different calculation, but it might not be better for the judges. The law requires 20 percent of votes cast in the previous election to recall a judge, an eight-point increase from the governor's law. On the other hand, generally, there are many fewer votes cast for justices. And some, though not all, of the judicial seats last faced a vote in the same low turnout 2002 election. No signature requirements have been released yet, but in some cases, though probably not for Chief Justice Ronald George, it may actually involve fewer signatures than was required to remove Davis.
Any recall proponent can also look at the fact that in other states, voters have been willing to kick justices out of office in hard-fought elections.
But even armed with these mitigating facts, the recall proponents have to be aware that they have a mountain to climb. There are reasons why there are so few recalls of judges and even of higher-ranking elected officials. In the century since the recall was first adopted by a state — Oregon — only two governors and a handful of state legislators have ever faced a recall. It takes time get enough signatures — time that frequently results in a cooling of the anger that caused the recall to be launched in the first place. And unlike in other elections, the recall participant is really running against his or her own record. The recall campaign by default must be negative. Despite the anger that results from judicial rulings on hot-button topics, voters rarely take action.
The dedication, in time and especially in money, of Proposition 8 backers make a recall threat against a justice something that has to be taken seriously. But as history shows, getting a recall on the ballot against a judge is a formidable task — one that few have accomplished.
Joshua Spivak, a public relations executive and attorney, is a research fellow at the Hugh L. Carey Center for Government Reform at Wagner College in New York.