Predictions and warnings, recollections and observations of former Chief Justice Ron George
11/10/2013 12:00 AM
11/08/2013 10:50 PM
As California’s chief justice from 1996 through 2010, Ronald M. George was the epitome of gentlemanly good taste.
So it is surprising to learn that he once stuffed a large salmon head into a fellow justice’s toilet bowl, its eyes and beak surfacing from the water, and that he crashed John F. Kennedy’s presidential campaign just to see if he could do it.
Posing sometimes as a press photographer, sometimes as Kennedy staff, the college student rode the campaign trail from New York to Missouri. Observing the candidate at an outdoor event, he sat in the stands near Harry S. Truman, who turned to him and said, “We’ve got a winner.”
But more surprising than the personal revelations is George’s candor in disclosing his formerly private views on public matters – the U.S. Supreme Court’s “activism,” “weak or even cowardly” legislative leaders, the inner workings of his own California Supreme Court.
“(O)ne of the greatest curses a chief justice has to deal with is a weak and indecisive legislative leader who does not have control of staff and does not give sufficient direction to the party caucus,” says George, whose job as head of the state’s enormous court apparatus often took him to the Capitol.
Some leaders, he says, allowed staff members, allied with public employee unions or other outsiders, to renege on their bosses’ commitments and pursue their own agendas.
George’s recollections and observations, predictions and warnings are revealed in “Chief: The Quest for Justice in California,” an 822-page book released last week by the Institute of Governmental Studies Press. It’s based on 65 hours of recorded interviews conducted for the California Supreme Court Oral History Project.
It’s at once a civics lesson and an autobiography.
George’s upbringing was privileged. He was born in Los Angeles in 1940 to immigrant parents from France and Hungary. His father, a stock speculator, prospered by defying conventional wisdom that the airline industry would collapse after World War II.
The Georges settled in Beverly Hills but, not wanting their children to be limited by its provincial entertainment culture, they sent young Ronnie to the International School in Geneva for a couple of years. That helped prepare him for Princeton’s Woodrow Wilson School of Public and International Affairs and an expected Foreign Service career. He changed course while touring Africa and seeing how diplomacy was practiced on its lower rungs.
Enrolled in law school at Stanford to rethink his calling, he found it in public service. He started as a criminal prosecutor and rose to the top of the nation’s largest judicial system. And now, as a private citizen, he tells not quite all, but plenty.
He has a lot to say about the U.S. Supreme Court.
“Certainly Bush v. Gore legitimately may be viewed as an instance of the high court’s reaching out into a political arena,” he says of the 2000 decision halting Florida’s presidential vote recount. He calls it a “one-time decision” that failed to perform the high court’s chief duty – to guide lower courts in similar future cases.
Of the court’s 2008 gun rights decision in District of Columbia v. Heller, he says it disregards the plain language of the Second Amendment. It “can’t help but fuel a cynical attitude on the part of the public that the nation’s highest court is just one more political entity ... and that its decisions are result-oriented rather than based on a neutral and consistent application of legal principles.”
Of the court's 2010 decision in Citizens United v. Federal Election Commission, which lifted limits on corporate campaign contributions, he says the high court committed most of the sins of judicial activism as the term is used among judges and other legal analysts. It overruled a recent precedent without justification. It used what had been a narrow case to issue a broad constitutional ruling. It reached out to decide issues that the parties hadn’t raised.
“The chickens all come back to roost, I think, if the court puts itself in a role that’s perceived as political,” he says. “It’s a matter of great concern to me.”
The recurring theme of this book is that the justice system needs the public’s confidence to perform its essential role in a democracy, and confidence is being eroded by activist Supreme Court decisions and other factors.
So when George criticizes in terms of public perceptions, he isn’t being evasive.
He’s especially critical of high court decisions that have increased the influence of politics in judicial elections, such as Citizens United and a 2002 decision in Republican Party of Minnesota v. White that allows candidates in judicial races to announce how they would rule on issues they might have to decide on the bench.
“Judicial elections are going to become more and more political through the activities of special interest groups motivated by social or economic agendas,” George predicts, warning that the California judiciary “is not immune from the very destructive forces that have been unleashed in recent years and that are on the rise nationally.”
George doesn’t mention that California already holds the spending record. In 1986, when voters here unseated three Supreme Court justices, the public campaign focused on the death penalty, but opposition to the justices was fueled by contributions from corporate farmers and other business interests. The election shifted the state’s highest court sharply to the right for several years in civil as well as criminal cases and, at $10.6 million, still ranks as the costliest judicial retention race anywhere, according to files of the Brennan Center for Justice, a law and public policy institute.
George played no part in his predecessors’ ouster. He was “quite astonished” by it, he says.
On the subject of the death penalty, however, he knows as much as anybody. He may owe his career to it.
As a deputy attorney general in the 1970s he led the state’s defense of its constitutionality in court and worked with then-Sen. George Deukmejian on an initiative to restore it after the courts struck it down.
George achieved statewide prominence in 1983 as the Superior Court judge who denied a prosecutor’s motion to dismiss murder charges against a serial killer known as the Hillside Strangler. John Van de Kamp, then-district attorney of Los Angeles, thought the evidence wasn’t strong enough. Typically, such motions are granted automatically, but George pored over the evidence himself for a week and concluded that a jury should decide the charges “to preserve the public’s confidence.” He turned the prosecution over to then-Attorney General George Deukmejian, whose office won convictions on nine murder counts, though the jury declined to recommend a death sentence.
In 1987, then-Gov. Deukmejian elevated George to the state Court of Appeal, where he placed the head of a 26-pound salmon in the toilet of Justice Jack Goertzen. The justice had pestered George to bring back a salmon from an Alaskan vacation with his wife and three sons. Goertzen’s “bellowing scream echoed through the chambers.”
Gov. Pete Wilson appointed George to the state Supreme Court in 1991 and named him chief justice five years later.
In the 56 death penalty opinions that George wrote as a Supreme Court justice, he voted to reverse the sentence in just seven. As chief justice, he did what he could to expedite completion of the appeals, but he said publicly a decade ago that the system had become “dysfunctional.”
Now he calls the death penalty a “charade” and says, “Get rid of it if you’re not willing to fix it.” He says he can’t justify the financial cost and the disrespect for the criminal justice system that come from having a death penalty on the books without carrying it out.
George, a Republican moderate, has declined to say how he voted as a citizen on the 2012 initiative to abolish the death penalty or on most other ballot issues. But he does reveal that he voted against legislative term limits in 1990 and against recalling former Gov. Gray Davis in 2003.
He thought Davis to be “the victim of machinations by Enron and other energy companies.” Removing him wasn’t “a wise use of the recall authority.”
George himself was challenged at the polls, though feebly, in a 1998 retention election. A year earlier he had led the California Supreme Court in striking down parental consent requirements for teenagers wanting abortions. Anti-abortion advocates had been threatening to unseat justices who ruled against them in the case. George’s response was to absorb the flak by writing the 4-3 majority opinion himself.
Near the end of his tenure as chief justice, he repeated the performance in In re Marriage Cases. It’s likely to be remembered as his greatest legacy.
But he didn’t know how he was going to vote until the case was well underway.
While it was before his court, George did something he’d never done before. He prepared two draft opinions with different outcomes and then dropped by the chambers of his six colleagues. He told them he was considering recommending that the court strike down the state’s ban on same-sex marriage, but he would circulate his two drafts and await their views before making his decision.
He recalls “a couple of justices having their eyes very, very wide open at ... even the consideration of the outcome of same-sex marriage.” But most of them just said, “I’ll be very interested in reading this.”
After weighing their input – they split three to three – he reached his decision and circulated the draft opinion that was before the court as it heard the case. It not only authorized same-sex marriage but, for the first time anywhere, it gave gay men and lesbians the highest level of constitutional protection.
George says he was swayed only by constitutional considerations. Denying the status of marriage to same-sex couples would be like “letting certain persons ride the bus but making them sit in the back,” he says. He admits, though, that the result “comported with my own sense of justice on a personal level.”
On May 14, 2008, the court’s clerk announced that the decision would come down the next day. On the 15th, George was in his chambers overlooking San Francisco’s Civic Center Plaza, where a crowd had gathered. A few minutes after 10, word reached the plaza. George heard the crowd roar.
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