APPELLATE JUDGES PUT THEIR JOB FIRST.

Byline: Laurie L. Levenson

IT'S that time of the year again. Citizens are asked to vote on the future of many of our judges without knowing very much about them or the important job they perform.

The very question of whether to elect judges is a controversial one. In other jurisdictions in this country, judges are appointed by political figures or elite boards to ensure their independence.

Voters in those states prefer not to make their judges into politicians by making them run for office. As a result, the judges have greater freedom in reaching their decisions.

The downside is that the public sacrifices a measure of accountability because the judges are not routinely subject to voter approval.

California has gone on a different path. In fact, there are two different types of judicial races on the California ballot. The first involves contests for positions in the state trial court, known as Superior Court. In these elections, candidates battle against each other for an open seat. The process can be expensive and bruising. In the end, the public decides which judge to appoint.

But, the second type of judicial contest - retention elections - is different. When it comes to Court of Appeal justices, the issue is ``up'' or ``down.'' The public is not asked to choose between candidates but simply whether the currently sitting justices should continue to serve.

The criterion for that decision, though not spelled out for voters on the ballot, is whether the justice remains ``fit to serve.''

To make this decision, the public often has less information to rely on than when deciding which judge to select to fill a vacancy in the Superior Court.

In many ways, it is a credit to the justices that they have labored in relative anonymity and not engaged in high-visibility campaigns. It means they have been focusing on their jobs rather than running for office.

Although the U.S. Supreme Court decided last term that judges have a First Amendment right to engage in wide-open debate when they must run for office, the justices of the California appellate courts have not chosen that path. Rather, they are letting their record speak for them. That record is an impressive one.

As detailed on the judicial Web site (www.courtinfo.ca.gov/courts/courtsofappealLine is overdrawn ), each of the justices running for retention has a distinguished background in the law. The 16 justices resolve hundreds of appeals annually. They also find time to assist in legal education by speaking to student groups and lawyers.

They are not by their nature political people. They are nonpartisan. They know they don't get to make the law; they only decide how to apply it.

And they have been doing all of this without any of the scandal or self- promotion.

We should ask no more of our justices. To require them also to campaign would be to invite several problems without offering us a better judiciary.

First, the time that judges would spend campaigning would only mean time away from deciding the important cases before them. Second, it is unreasonable to expect that justices spend close to half of their annual salary to pay for the cost of a campaign, including a voter pamphlet statement.

Even worse is the possibility of corruption, or at least the appearance of impropriety, that can taint judges who solicit contributions for their judicial future.

Finally, it is unwise to ask or expect that a group of men and women, respected for their fairness and knowledge of the law, be evaluated on their social and political appeal.

In this immediate post-Bush v. Gore era, it is a relief that the justices of our appellate courts have taken a less political route, even when it comes to preserving their own jobs.

As the famous Judge Learned Hand once noted in response to efforts in his time to recall judges, putting political pressure on a judge for any purpose ``utterly perverts the assumption which is fundamental in his function. ... (A judge) should properly have no duty but to interpret words which have been used by (the law) itself ...''

We are lucky that in this election we can vote for a list of conscientious appellate court judges who have made judging, not politics, their priority.

It is an approach that maintains the integrity of the court without depriving the public of the final say over who will constitute their judiciary.