Why We Should NOT Recall Justice McGuiness

In this morning's CalLaw news digest, there was a note that Justice William McGuiness -- who authored the majority opinion in the California Court of Appeal decision denying marriage equality to same-sex couples -- is up for re-election in November. To quote CalLaw: "An overlooked tidbit regarding the First District’s ruling against gay marriage: William McGuiness, author of the majority opinion, is on the ballot for retention this November. Appellate justices must run for retention every 12 years, meaning they must secure a majority of 'yes' votes to stay on the bench. Few issues fuel as much passionate disagreement as gay marriage, and so with yesterday’s ruling, McGuiness just inserted himself in the middle. Because the First District is very liberal — its main population centers are San Francisco and Alameda Counties — could McGuiness’s decision spark a political response from the pro-gay marriage crowd?" As extraordinarily annoying and simple-minded as Justice McGuiness's decision is, I could not support a recall effort for one basic reason: to recall appellate court justices based on their political leanings is to undermine the independence of the judiciary from the political process. In California, we've seen first-hand the havoc that can be played by politically-motivated judicial recalls. Remember the recall of Chief Justice Rose Bird?? She was anti-death penalty, and voted her conscience in many of the death penalty cases that came before her. And she was recalled for voting her conscience, and pro-death penalty justices were elected in her place. And California appellate courts have had a shameful history of bending over backwards to uphold death sentences ever since -- even when there was major legal error that would clearly have warranted reversal. As a result, we have a bunch of really lousy, result-driven law on the books in California, where legal principles get shredded to make sure that the death sentences are upheld. And the rest of us have to live with those lousy, result-driven decisions. As much as I hate Justice McGuiness's decision in the San Francisco marriage case, I cannot support the recall of judges who vote their consciences. That's what judges are supposed to do. And our legal process suffers more from launching recalls that leave appellate judges looking over their shoulders every time they have to vote on a controversial matter than it does from a few bad decisions along the way. We always knew that marriage equality was going to the California Supreme Court -- let's focus our energy on pro-active efforts to make sure we win there, rather than on re-active efforts to punish the judges who have ruled against us along the way.