Author: Tony Quinn

Read Part 1 here

Three strikes and you’re out should apply to the Jerry
Brown Supreme Court, and in fact did.  In 1986, an angry electorate
defeated three of the Brown judges up for retention election, and
fundamentally changed the Supreme Court. These three strikes are the
legacy of Brown’s court.

Strike One: Destroying of the court’s reputation for excellence and impartiality.  

"The court’s national statue has waned under Bird" headlined the California Journal
in 1986 analyzing the reputation of the court in the year of Bird’s
second retention election. The court was very liberal under Brown and
Bird, but that was nothing new.  It became a liberal court under former
Chief Justices Phil Gibson (1940-1964) and Roger Traynor (1964-1970).
But the court was then considered a trendsetter; that court was
liberal but not ideological.  "There dwelt one giant (Traynor) and many
tall trees on the California Supreme Court of the 1950s and 1960s,"
wrote the director of the Earl Warren Legal Institute in 1986.

Part One of Two

Are Jerry Brown’s judges a legitimate issue in this governor’s race?  Some argue that no one remembers them; they were tossed of the Supreme Court 24 years ago; it is all ancient history.  But Brown is running for re-election to the office he held for two terms.  His record then is rightly an issue now, especially his record on judges.

Brown appointed seven Supreme Court justices between 1977 and 1982, and for most of his term his appointees formed a majority on the court.  His most controversial appointee was Chief Justice Rose Bird, appointed in 1977 and removed from the court by the voters in 1986.  Bird came to symbolize "Jerry’s Judges," and for good reason; she epitomized the Jerry Brown court: highly ideological, contemptuous of legal precedent, and openly partisan.

Right from the start Bird proved herself a terrible choice.  Immediately upon taking office she picked fights with the court’s professional staff.  This may not seem like much, but the Chief Justice is also chief administrator, and is responsible for assuring fair and impartial administration of the law.  Bird ignored this.  She forced out the court’s top lawyer, Donald Barnett, who had served four chief justices, even refusing to attend his retirement dinner.  "She treated the staff of her predecessor as if they were agents of a foreign country," one former law clerk wrote.

California may have one of its closest elections ever this November.  Most polling shows a virtual dead heat for both governor and senator.  So turnout may well be the deciding factor this fall, and the apparent decision of one county not to encourage absentee voting could easily be a deciding factor in who wins.

There is no question that absentee voting, especially by permanent absentee voters, has become a very popular way of casting your ballot.  Nearly 58 percent of voters in the June primary cast their ballots by mail (absentee.)  The percentage of Californians voting absentee has risen in nearly every election over the past 30 years.

It’s not hard to understand why. Permanent absentee voters have a whole month to send in their ballots.  They can decide how to vote at leisure, making their decisions over the kitchen table.   Election Day voters must find their precinct, may have to stand in line, and must make their decisions in a polling booth.

It is not an overstatement to say that the "true conservative" right
wing of the Republican Party suffered a defeat Tuesday from which it
may never recover.

Shifting through the ashes, the wreckage is
everywhere.

Start with the long term: Proposition 14, the top two open primary.
This measure will have a bigger impact on Republican candidates,
because there is not a single district in California with a Republican
registration majority.  

Hidden away on the June primary ballot is Proposition 15, titled the California Fair Elections Act.  While the measure has not received a lot so attention so far, it is a classic example of the law of unintended consequences.  

Disclosure: I am one of the ballot pamphlet signatories opposing this measure.  I signed the rebuttal argument for a couple of reasons.  This is a system of public financing of elections placed on the ballot by the legislature, ostensibly to test public financing in the Secretary of State’s election, beginning in 2014. 

However, the authors conveniently forgot to tell the voters that hidden away in the measure is language repealing the currently existing prohibition on public funding of political campaigns.  It took a lawsuit to get this fact onto the ballot label.

Sacramento Bee columnist Dan Morain let the cat out of the bag last Sunday.  In his Bee column, he discussed the sudden passion of billionaire entertainment mogul Haim Saban for getting rid of the Citizens Redistricting Commission that is supposed to draw new legislative district lines in 2011.   The Commission was established by Proposition 11, passed in 2008, but a number of congressional Democrats are pushing a ballot measure for this November to repeal the commission and return line drawing to the legislature.

This dubious measure, fronted by UCLA law professor Dan Lowenstein, comes at a time when approval for the legislature is hovering at about 10 percent.  So it seems unlikely the people will vote to restore to indolent incumbents the right to draw their own district lines.  But that’s not really what’s at stake here; this is about a reach for raw political power, and thanks to the $2 million contribution from Saban, the power grab initiative will make the fall ballot.

Why would Saban, who actually supported Proposition 11 in 2008, want to kill it in 2010?  Morain provides the answer: “Saban makes no secret of his passion and it is not reapportionment.  ‘I’m a one issue guy and my issue is Israel,’ Saban told the New York Times in 2004.

In the annals of California political history, very few campaigns have been worse than that which Steve Poizner has run for governor. But his keystone kops effort also underscores how very close the California Republican Party is to disappearing as a political force in this state.

Consider his latest. In an effort to brand himself the “true conservative” in the race, Poizner has evoked Tom McClintock in a new radio ad and web posting. It encourages California Republicans to support him because McClintock does.

Tom McClintock may be the single biggest loser in California political history. No other major party candidate has lost so regularly every time he has presented himself to the voters in a statewide election. Look at the record: in 1994, a grand GOP landslide year, McClintock was defeated for state controller. In 2002, a good GOP year nationally, McClintock again was defeated for controller. In 2003, he garnered exactly 14 percent running for governor in the Davis recall. And in 2006, he managed a fourth loss, running for lieutenant governor. With this record Poizner thinks voters should let McClintock pick the GOP gubernatorial contender.

Two years ago, Insurance Commissioner Steve Poizner looked a good bet to be the GOP standard bearer for governor – a sensible fellow, the only Republican except Gov. Schwarzenegger holding statewide office, and a successful businessman in a time of economic distress. Today, he is 49 points behind his GOP rival in the latest Field Poll and his supporters are running for the hills.

Facing political collapse, he has resorted to the historic tactic of a political scoundrel, race baiting, in this case making immigrant bashing the central theme of his faltering campaign. He told the state GOP convention he would stop all public benefits to illegal immigrants (which he can’t do thanks to court rulings), and stop any more from crossing the Mexican border, “If I have to, I’ll send the National Guard to the border. If that doesn’t work, I’ll send the California Highway patrol to the border. And if that doesn’t work, I’ll send the California Republican Party to the border.” He did not say whether Republicans would be allowed to bring along their illegal nannies and gardeners.

The article in Friday’s Fox and Hounds titled, “What if the Open Primary were Used for the Governor’s Race in June?” paints a very inaccurate picture of what we might expect were the “top two open primary” in effect for the June election.

The article reports that a survey of 794 high propensity voters would break down as follows in an open primary: Meg Whitman 29 percent, Jerry Brown 25 percent, Steve Poizner 21 percent. The author contends that Democratic voters would vote “strategically” by crossing over to help nominate Republican Poizner as the weakest candidate to face Democrat Brown in the fall. “We believe that Democrats and Liberals are expressing a sentiment not for any candidate in particular but against Meg Whitman. This interpretation might give ammunition to those who argue voters could cause mischief in an open primary system.”

This poll and these conclusions are both counter-intuitive and run against the history of voting in an open primary. First, almost all other polling has shown that Poizner has very low name ID. Why would we think that vast numbers of Democrats would throw away their votes on a candidate they have never heard of? If they wanted to vote against Whitman, as the poll implies, they would logically vote for Jerry Brown. Hardcore liberal Democrats would not go to the polls to vote for the most conservative candidate for governor.