A fellow columnist once told me that when one has
written hundreds of columns over the decades, as we both have, now and then we
can get away with recycling columns from past years. I admit to occasionally “borrowing” from past
columns, some going back decades. But
when I do, I usually “fess up,” as they say in some regions of the country,
that I am borrowing from a past column in the new column. I rationalize that the ersatz new column
gains legitimacy through added retrospective comments in light of the
present. Another rationale to give this
practice the aura of respectability is that it’s better to borrow from oneself
than from others. A solipsist cannot be
guilty of plagiarism.
This
column is one in which I refer to a column of recent vintage, a mere two months
ago, titled “Not My Vote.” And in this present
column I also draw upon the eloquence of others who, like me, are deeply
concerned about grave threats to the judiciary. The threat is so alarming that it has spread
like a pandemic disease to groups and individuals who should be immune to its
deleterious effect. It stems from
judicial elections and the recent recall effort.
Pardon
the awkwardness of quoting myself, but in the last two paragraphs of Not My
Vote, I wrote:
“I submit that a lawyer’s right to run against
a judge is not the equivalent of an entitlement to do so. ‘Restraint,’ we are told, is an admirable
judicial trait. I suggest that voters
and challengers to competent judges keep this in mind.
“I will
have more to say about judicial elections in future columns. But for now, unless I have reason not to do
so, all incumbent judges have my vote.
In my opinion, lawyers looking for a new job who challenge capable
judges do not deserve my vote. Their
motivation rates them Not Qualified.”
Well,
this is the future column and my view has not changed. In the March 14th edition of the Daily
Journal, Justice Anthony Kline took four San Francisco public defenders to task
for opposing four highly competent superior court judges solely because they
were appointed by Republican governors.
Justice Kline aptly pointed out that “the effort to defeat four of the
most able, compassionate and experienced judges . . . simply because
they were appointed by a Republican governor in an overwhelmingly Democratic
county is an unmitigated act of political opportunism.” Incidentally, three of the judges are
Democrats and one declined to state.
Kline points out that the irresponsibility of this challenge “threatens
to undermine independence and integrity of one of the finest superior courts in
this state.”
I was
puzzled that public defenders should take such a meritless position. They represent indigent defendants and ensure
their clients receive the constitutional protections to which we are all
entitled. Their attempt to unseat
competent judges leads to a judiciary looking over its shoulder when making
decisions that are correct, but not popular.
This leads to disastrous results for their clients.
As
Justice Mariano-Florentino Cuéllar cautioned in a letter to the editor of the
Daily Journal on March 27, "When no one can seriously question the
dedication, ability and integrity of judges, those judges should be able to
remain in office. To ignore their
integrity and their commitment to public service is to attack the integrity and
independence of the courts. That does
absolutely nothing to advance, and much to threaten, equal justice."
And
this takes me to the effort to recall Judge Aaron Persky, who is being targeted
for recall because of his sentencing decision in one sexual assault case. Judge Persky is a highly regarded superior
court judge in Santa Clara County for more than a decade. Prior to that, he was a prosecutor for the
Santa Clara D.A.’s office. He won an
award for promoting human relations and civil rights, and is on the board of a
support group for battered women.
Whether
one agrees with Judge Persky’s sentencing decision or not, it was lawful and
followed the recommendation of the probation department. We are all sympathetic to the trauma suffered
by the victim, but to recall a judge because of disagreement with a single
decision inhibits rather than advances the cause of justice.
In an article for the Silicon Valley
De-Bug, well-known retired Judge LaDoris Cordell wrote:
"Without
discretion, we are left with cookie cutter justice that imposes mandatory
sentences, without any regard for the defendants’ circumstances. If Judge Persky is recalled, trial judges in
Santa Clara County, and throughout the State of California, will be looking
over their shoulders, testing the winds before rendering their decisions. By
sending a message that unpopular decisions may lead to a recall, the campaign
threatens the willingness of judges to give individual consideration to
defendants at their sentencings. Should this recall succeed in removing a judge
for making an unpopular decision, it will be harder for low-income defendants,
most of whom are of color, and harder for those who advocate for them, to
receive judicial consideration of mitigating circumstances. I’m not just
making this up. Several empirical studies have concluded that judges impose
harsher sentences when pressured by elections, and that these effects are
concentrated on defendants of color."
In
August of last year, the San Francisco Chronicle ran an editorial by Ellen
Kreitzberg and Michael Vitiello. They wrote:
"Judicial recall was designed for and must be limited to cases
where judges are corrupt or incompetent or exhibit bias that leads to
systematic injustice in their courtrooms. None of these criteria applies to
Judge Persky. We believe it is critical to distinguish disagreement with a
particular sentence or allegations about a handful of decisions from an attack
on a judge’s overall record. Thus, it is vital to recognize that both the Santa
Clara County Bar Association and the State Commission on Judicial Performance
have issued statements that they have found no evidence of bias
whatsoever." The article cites
Former U.S. Supreme Court Justice Sandra Day O’Connor who laments unfounded
judicial campaigns as “political prizefights where partisans and special
interests seek to install judges who will answer to them instead of the law and
the Constitution.”
As Dean Erwin Chemerinsky wrote in the Sacramento Bee on January
22 in support of Judge Persky, "Recall efforts are a
serious threat to judicial independence as judges will fear that unpopular
rulings will cost them their jobs. Justice, and all of us, will suffer when
judges base their decisions on what will satisfy the voters."
I am not arguing that because the sentence Judge Persky
imposed was lawful, it is not open to criticism and discussion. All judicial decisions are and should be open
to both criticism … and I hope praise once in awhile. But however one might argue about the merits
of a lawful judicial decision, it should not make the judge who made that
decision subject to recall. As you can
tell from the foregoing, the consequences are inimical to an independent
judiciary.
We in the judiciary and the legal professions must inform
the public how an independent judiciary is vital to our democracy.
The
following judges, listed on the California Judges Association website, have
been challenged in the upcoming judicial election. They are all capable and qualified and
deserve your vote.
Incumbent Name: Tara Flanagan
County: Alameda
Email: judgetaraflanagan@gmail.com
Website: https://donate.democracyengine.com/Flanagan2018/contribute
Incumbent Name: Juan Ulloa
County: Imperial
Email: ulloajn@gmail.com
Website: https://www.facebook.com/ulloajudge
Incumbent Name: Malcolm Mackey
County: Los Angeles
Email: malcommackey@sbcglobal.net
Website: http://mackey4judge.com/about-judge-mackey
Incumbent Name: F. Dana Walton
County: Mariposa
Email: JudgeDanaWalton@gmail.com
Website: https://www.reelectjudgewalton.com/meet-dana.html
Incumbent Name: Theodore Howard
County: Orange
Email: trhoward@cox.net
Website: http://www.reelectjudgehoward.com/
Incumbent Name: Arthur Harrison
County: San Bernardino
Email: aharrison4judge@earthlink.net
Website: https://judgeharrison.com/home/judge-harrisons-background/
Incumbent Name: Yvette Durant
County: Sierra
Email: judgeyvettedurant2018@gmail.com
Website: https://judgedurant.com/
Incumbent Name: Cynthia Ming-Mei Lee
County: San Francisco
Email: mcm1492@sbcglobal.net
Website: https://www.justicesf.com/
Incumbent Name: Curtis Karnow
County: San Francisco
Email: cekarnow@yahoo.com
Website: https://www.justicesf.com/
Incumbent Name: Andrew Cheng
County: San Francisco
Email: andyyvonne@sbcglobal.net
Website: https://www.justicesf.com/
Incumbent Name: Jeffrey Ross
County: San Francisco
Email: jeff.ross44@gmail.com
Website: https://www.justicesf.com/
Incumbent Name: Hernaldo Baltodano
County: San Luis Obispo
Email: hernaldo@judgebaltodano.com
Website: http://www.judgebaltodano.com/
Incumbent Name: Gerald Buchwald
County: San Mateo
Email: buchwaldforjudge@gmail.com
Website: https://www.buchwaldforjudge.com/
Incumbent Name: Laura Woods
County: Tehama
Email: laurawoodslaw@yahoo.com
Website: https://www
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