As discussed, the Supreme Court today affirmed the death sentence in People v. Johnsen.  One of the defendant’s many unsuccessful arguments was that, as paraphrased in the court’s opinion, “his conviction and sentence are invalid because state judges are subject to direct elections, retention elections, or both.”

The court continued, “Pointing to the 1986 election where California voters declined to retain three high court judges ostensibly due to their views disfavoring the death penalty [see here, here, and here], Johnsen argues political disincentives to ‘make defense-favorable rulings in capital cases’ result in a ’tilted system.’ ”

The argument is dismissed in two sentences:  “Although Johnsen is certainly entitled to ‘impartial’ judges, he ‘is not . . . entitled to have his appeal decided by justices who have never formed or expressed opinions or thoughts on general topics such as the propriety of the death penalty.’  Even if judicial elections were a conflict of interest, they ‘would apply equally to all California judges and, under the common law rule of necessity, the justices of this court [and our lower courts] would not be disqualified.’ ”  (Quoting People v. Kipp (2001) 26 Cal.4th 1100, 1140–1141; citations omitted.)

The court rejected a similar argument with different reasoning in People v. Nguyen (2015) 61 Cal.4th 1015, 1089–1090.  (See here.)

The argument has not prevailed, but it’s not frivolous.  Former Supreme Court Justice Otto Kaus memorably likened judicial elections to a crocodile in the bathtub that judges can’t ignore when they’re in their bathrooms.  And not-at-all-subtly reinforcing that point, after Nguyen, a death penalty advocate was quoted in the Los Angeles Times explaining his preference for the California Supreme Court, rather than the federal courts, to have the final say in capital appeals:  “We can’t get rid of Reinhardt.  We got rid of Rose Bird,” referring to liberal then-Ninth Circuit Judge Stephen Reinhardt, and to California Supreme Court Justice Bird whom the voters ousted in 1986.