SAN FRANCISCO (CN) – Retaining judicial independence is an increasingly thorny proposition as judges grapple with politically charged elections, recall efforts and social media attacks.
Legal experts explored this topic in a panel discussion Tuesday evening at the Commonwealth Club of San Francisco, concluding that eliminating elections altogether might be the logical solution.
“Judicial independence is the idea that a judge should decide a case based solely on his or her views of the laws and the facts. I want a judge there who is going to do justice and follow the law; not a judge who is going to please the voters in the next election,” said Erwin Chemerinsky, dean of Berkeley Law School.
He said judges are always aware, consciously or not, that voters are evaluating their decisions.
One notorious example of this is the successful recall campaign against Santa Clara County Judge Aaron Persky. In 2016, Persky sentenced Stanford student Brock Turner, then 19, to six months in jail and probation for sexually assaulting an unconscious woman, based on applicable statutes and a recommendation from the California Department of Probation.
Public outcry was swift and Persky was ejected from the bench by voters in 2018.
“What happened to Judge Persky was a smear campaign,” said Chemerinsky, who was one of many in the legal community who defended Persky during the recall effort. “The appropriate response to a judge’s decision we don’t like is to appeal. But I don’t think the appropriate response would be to remove him from the bench.”
While Chemerinsky said he thought the Turner sentencing too lenient, the recall vote sent a message to all judges that they should be beholden to voters in their rulings.
“I disagree that the sentence was too lenient,” said retired California Superior Court Judge LaDoris Cordell, who moderated the panel entitled “Judicial Independence and the Public Good.”
“I think it was entirely appropriate given the facts of the case, but that’s not the issue,” she added. “As long as a judge behaves within the law the judge deserves to be on the bench.”
She went on to suggest that recall elections be eliminated.
“To maintain judicial independence, judges who follow the law can never be the targets of recalls. That’s my proposal,” Cordell said.
Chemerinsky said judges should only be allowed to be recalled for “incompetence or dishonesty.”
Joining the two on the panel was Judge Curtis Karnow, one of four Democratic San Francisco judges challenged in a local election last year by four public defenders, who targeted them for having been appointed by Republican governors. Karnow said it was a grim example of how politics have affected the judiciary.
“It was a purely partisan attack,” Karnow said. “There was no suggestion any of the judges had done anything wrong.”
Karnow and his colleagues were able to defeat their challengers, in large part due to monetary contributions from the legal community. But he said said this became problematic when they were scheduled to hear arguments from the very people donating to their campaigns.
“We were getting money from all of the lawyers who might in the future appear in front of us,” Karnow said.
Because of the way campaign donations have to be disclosed, Karnow said the public listing of law firm donors made the situation all the trickier.
“What message does that send to you, the lawyer, if you haven’t given money to that judge?” Karnow said.
Fortunately, he said the judges were given money from a broad spectrum of legal interests.
“So in that sense it all evened out,” he said. “But it could have been otherwise.”
While some are elected to vacant seats, most of the state’s roughly 1,600 judges are appointed by the governor after being thoroughly vetted by the California Commission on Judicial Nominees Evaluation but they can be challenged every six years.
“I would eliminate judicial elections,” Chemerinsky suggested. “Judges shouldn’t have to be politicians.” He said he realizes this is an unrealistic proposition in California, so instead proposed campaign finance rules that would restrict how much law firms can contribute to judicial elections.
But how else can judges be held accountable to the public if not through the electoral process?
One suggestion was the Commission on Judicial Performance, the state body in charge of investigating and disciplining judges for misconduct, but the agency has come under fire this year from the California State Auditor, who said in an audit released earlier this year that “flaws in the commission’s investigative processes could allow judicial misconduct to go undetected and uncorrected.”
Cordell said she was concerned that many similar bodies across the state have disciplinary rates of only 2-5%.
“Does it mean most of those complaints don’t have merit, or are these disciplinary bodies not doing their jobs?” she asked, noting that there should definitely be more transparency in the investigative and decision-making process.
Karnow said judges are already answerable to the public.
“What judges do is they look at the will of the people as embodied in its most thoughtful, reflected, considered form. And that form is the law. The oath that judges take is to follow that. So judges are clearly accountable to the people in that sense,” he said. “The notion we are not otherwise accountable is a mistake.”