Prop 8 Supporters Target New Enemy: Impartial Judges of California Courts


Posted on 12 April 2010

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By Dan Aiello
California Progress Report

In what has been described as an attempt by right wing religious conservatives to "pack the courts" with judges who will oppose Separation of Church and State and "uphold traditional moral beliefs," an organization created by former Prop 8 activists is working to shift the San Diego Superior Court further to the right with a slate judicial conservative candidates to challenge four moderate incumbents of San Diego County's Superior Court in the June primary.

The candidates of the organization, Better Courts Now, were vetted on issues of Separation of Church and State, abortion, same-sex marriage and "traditional moral values," according to the group's web site and BCN leaders.  In what has become the all-too-familiar alliance between religious fundamentalists and pro-business interests, Better Courts Now candidates also pledged their opposition to "end frivolous lawsuits against California businesses."

Challenging incumbent judges, most of whom are appointed by California's governors, is rare, but there have been challenges to the independence of the judicial branch by conservatives before, according to Jennifer Pizer, chief counsel for Lambda Legal, a national organization focused on the attainment of equal rights for gays and lesbians.

"It's not new for social reactionaries to seek to pack courts with right-wing ideologues, it's been a central plank in the national Republican Party platform for more than 3 decades to remake the federal judiciary into an institution hostile to equality claims of minority groups, freedom claims of individuals as against the government, labor and environmental claims against big business, criminal defendants' and prisoners' claims," Pizer stated in an email response to California Progress Report.   "Due to focused, though sometimes beneath-the-radar, organizing efforts, the federal judiciary today does look very, very different than it did when the breakthrough desegregation and then women's rights cases were decided."   

Bettercourtsnow.com creator Don Hamer, pastor at Zion Christian Fellowship was interviewed by Khari Johnson, writing for San Diego News Network shortly before Hamer died in March of a heart attack.  

According to Johnson's article, Hamer started to organize the idea for Better Courts Now three years ago, “long before Proposition 8 became an issue,” he said, though Hamer added the statewide measure that banned gay marriage "didn’t hurt" their attempts to rally a conservative base against judges.

“Some of these judges have a disregard for the law,” Hamer said. “We’re trying to give people a voice again, because right now we don’t have one.”

Hamer was unable to provide examples to Johnson of disregard for the law by any of the four incumbents challenged.  In fact, Johnson found the only reason these four judges was their label as moderates.  

“I have to refrain from giving examples,” Hamer told Johnson. “It’s not my goal to bad mouth anyone. But I will tell you I could give you a lot of examples.”

Each Better Courts Now candidate went through a vetting process in which they were asked whether or not they support abortion or gay marriage.

“We did ask those questions, but the answers came back in a way that we know we had fair and just judges,” Hamer said.

Pizer calls the efforts by Better Courts Now to target moderate judges in California's state judiciary "deeply distressing but not shocking," and told CPR anyone "who cares about preserving our judicial system's potential to deliver a measure of equality and fairness should be similarly appalled and alarmed.  Stacking the courts with reactionary ideologues is not like doing so to local school boards and city councils, as the right wing has done in many communities.  School board and legislative elections are intended to be political contests, even though electing people based on religious or 'traditional morality' credentials rather than education or other public policy is a recipe for grossly distorted and dysfunctional public education and government," Pizer said. 

Pizer believes the argument of Better Courts Now is similar to that of the Republican Party's platform on the issue of courts, where the goal of an impartial and fair judiciary is abandoned with little justification beyond limiting the courts power except in cases supporting conservative beliefs.  "Courts  are not to be 'balanced' by mixing overt biases," Pizer said.  "The overriding qualifications for the bench must be legal acumen and impartiality.  Pizer believes every citizen, "no matter our background and the nature of our legal claim -- should be entitled to a hearing before a judge who has not prejudged the case based on his or her personal ideology, and who has the intellect to decide both hard and easy questions logically, fairly and consistently with the constitutional guarantees of equal protection, due process, the separation of church and state, among other core principles."

Opponents of Better Courts Now, like San Diego's gay blogger, Mike Tidmus, find it disturbing that Hamer had been Chairman of the city of Santee's human relations commission, a group that is supposed to fight discrimination, since it was formed in 2001. 

"Better Courts Now is a means to an end we want," Hamer stated in a response to a supporter.

"We have seen past attempts in California to attack, repeal or not retain judges who decided socially charged cases in an impartial manner," stated Pizer.  "It's always profoundly alarming because it can be so easy to do.  Judicial ethics rules make it difficult for judges to raise money and campaign.  And many people have no idea who sitting judges are, who among them are top notch and who fall short and why, and whether challengers are well qualified as lawyers, let alone to be judges.  Many of us practicing lawyers do try at election time to inform family and friends about judicial races, while recognizing that our non-lawyer friends often simply take our advice without feeling able to make their own assessments.  The recommendations of bar associations and attorney committees can be especially important to provide systematic information but, again, many voters can't make independent assessments of that information either.  It's a tough but important challenge for our society and government."

San Diego County's contended races include, BCN candidate Craig Candelore challenging Judge Lantz Lewis, BCN candidate Bill Trask challenging Judge Robert Longstreth, BCN candidate Harold Coleman challenging Judge DeAnn Salcido and BCN candidate Larry Kincaid challenging Judge Joel Wohlfeil.  

“We need to get prepared for a big fight,” San Diego County District Attorney Bonnie Dumanis, a Longstreth supporter, told SDNN's Johnson.  "This is a fight for the independence of the judiciary.”

Better Courts Now admits it offered no opportunity for any of the incumbents to seek the group's endorsement or answer the questions posed by the group to determine if a candidate qualified.  While Hamer and other BCN organizers have professed their conservative-pledge candidates are better qualified than the incumbents, the resumes of the challengers do little to support the claim.  

According to SDNN, Bill Trask is a vice president of a mortgage lender.  Trask declined to comment on his campaign, BCN or the race.  A fifth BCN challenger, Brett Maxfield, had his intent-to-run petition was thrown out after a Riverside judge determined he had not been a member of the California BAR long enough to qualify for the race.  Despite the ruling being made in Riverside County, Maxfield didn't waste the chance to criticize San Diego courts over the finding.  “The whole system is so rigged down here. It’s very difficult to get justice around here,” Maxfield said.

Pastor Hamer and another chief organizer of Better Courts Now and San Diego's "Yes on Prop 8" campaign, Pastor Chris Clark of East Clairemont Baptist Church, told Johnson Better Courts Now "doesn’t have to do with religion and isn’t politically motivated."  

"Among the things that struck me about the BetterCourtsNow website and approach is that it shows a reactionary group using social media and internet organizing in ways that LGBT groups and other progressive causes have been doing for some years," Pizer told CPR.  "It is notable, as it may portend more success for this effort than might have been true 5 or more years ago.

Superior Court judges are appointed by the governor, but every two years about one-third of Superior Court judges face election campaigns.

Pizer reasonable people should be alarmed by the group's effort to alter the direction of the court, saying "It must be taken seriously or it may do terrible damage to the state judicial system, which we all depend upon to remain as fair, impartial, depoliticized and high quality as possible.  The fact that many state judges are appointed by the governor means that politics unavoidably has played a role in many appointments.  But both Democratic and Republican governors often have seen their appointments as a core part of good government and have sought judges of high caliber.  Given the anti-intellectual tenor of much right-wing organizing these days, I shudder to think of the wreckage the BCN campaign could make of our state judiciary if it gains traction.  

"We all -- on all sides of the political spectrum in California -- actually have a common stake in preventing that," Pizer said.

While San Diego County's office of registrar makes retrieval of political data difficult to obtain with a complicated request procedure requiring in-person payment, BCN did file forms 410 and 460, listing treasurer, funds raised, political contributions and expenditures and is registered with the Secretary of State's office.

Supporters of BCN include 77th District Assembly member Joel Anderson.

Other supporters include:

– Protect Marriage Action Fund executive director Ron Prentice;
– Dr. Jennifer Roback Morse, director and founder of The Ruth Institute, which promotes marriage between a man and a woman;
– Dran Reese, director of The Salt and Light Council, which “provides a structure and readiness for a quick response to issues that surface attacking family values and God’s Non-Negotiable moral values.”
– Frank Kacer, founder and executive director of the Christian Citizenship Council;
– Dwight Johnson, founder of the Christian Catalyst;
– Charles Li Mandri, West Coast regional director of Thomas More Law Center, which calls itself “the sword and shield for people of faith”;
– Dean Broyles, an attorney for the Western Center for Law and Policy;
– John Woodrum, president of the Eagle Forum in San Diego;
– Joel Anderson, 77th District state Assemblymember;
– Jim Garlow, pastor of Skyline Wesleyan Church in La Mesa
-- The Ramona Tea Party

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Dan Aiello is a reporter for the California Progress Report.

Dan left out one of the most prominent BCN supporters and that is former CA Assembly Member Steve Baldwin. After he left the Assembly where in 1994 he briefly chaired the education committee when the Republicans wrested control of the Assembly from Willie Brown, Baldwin became the Executive Director of the secretive Council for National Policy where he served for 8 years. He is now a fellow of Joseph Farah's Western Journalism Center.

In many of the struggles for civil rights anywhere in the country one can generally find a member of the CNP leading or financing the opposition.