California Forum

Mobs are going after the judiciary this election. Don’t let them corrupt the law

Stanford law professor Michele Dauber has sought to have Santa Clara County Superior Court Judge Aaron Persky removed since 2016. Dauber felt the judge should have imposed a heavier sentence in the Stanford sexual assault of an inebriated woman at a party by an inebriated freshman swimmer, who served six months in jail. (AP Photo/Eric Risberg, File)
Stanford law professor Michele Dauber has sought to have Santa Clara County Superior Court Judge Aaron Persky removed since 2016. Dauber felt the judge should have imposed a heavier sentence in the Stanford sexual assault of an inebriated woman at a party by an inebriated freshman swimmer, who served six months in jail. (AP Photo/Eric Risberg, File) AP

The independence of the judiciary is squarely before many northern California voters in the June 5 primary. For example, four incumbent Superior Court judges – Andrew Cheng, Curtis Karnow, Cynthia Ming-mei Lee, and Jeffrey Ross – are being challenged because they were appointed by a Republican governor, Arnold Schwarzenegger. No one has suggested that any of these judges has engaged in any impropriety or performed inadequately in any way.

All four of the challenged judges are registered Democrats, not that political party should matter in evaluating judges. Yet, one of the challengers declares that “this is not about politicizing the bench, not about judicial independence” but only about the fact that “a Schwarzenegger appointee doesn’t reflect the values of our community, it’s that simple.”

If there is disagreement with a judge’s ruling, the remedy should be to appeal the decision, not to remove the judge. No judge in California has been subjected to a successful recall since 1932. If the recall campaign against Judge Persky succeeds, it will send a powerful message to all judges that a lenient sentence that displeases the voters could cost them their positions.

But denying these judges reelection entirely because of the political party of the governor who appointed them is all about politicizing the bench and it is an enormous threat to judicial independence. As California Court of Appeal Justice Anthony Kline stated: “The defeat of four experienced and fair-minded judges simply because they were appointed by a governor belonging to a different political party than most San Franciscans would demoralize judges statewide and set a devastating precedent.”

A particularly serious threat to judicial independence is posed by the campaign to recall Judge Aaron Persky in Santa Clara County. Following a recommendation from the probation department, Judge Persky, who has been on the bench since 2003 and was reelected without opposition in 2016, imposed a sentence of six months followed by three years of probation in a sexual assault case.

A vicious campaign has been launched against Persky, filled with inaccuracies. For example, his opponents falsely accused him of imposing a higher sentence on a Latino defendant in a case, but actually the defendant fled and never has been sentenced.

If there is disagreement with a judge’s ruling, the remedy should be to appeal the decision, not to remove the judge. No judge in California has been subjected to a successful recall since 1932. If the recall campaign against Judge Persky succeeds, it will send a powerful message to all judges that a lenient sentence that displeases the voters could cost them their positions.

And the threats to judicial independence are not just in California. Earlier this year, the Pennsylvania Supreme Court, which includes five Democrats and two Republicans, held that federal congressional voting districts that had been gerrymandered to favor Republican candidates were unconstitutional under the Pennsylvania Constitution. The federal courts, including the Supreme Court, left this ruling untouched. Several Republican legislators sponsored a bill in the Pennsylvania House of Representatives calling for the impeachment of the four justices (all Democrats) who had been in the majority, accusing them of “misbehavior in office.”

In Washington State, a bill (HB 1072) would allow the legislature to override, with a simple majority vote, any decision by a Washington court striking down a legislative act as unconstitutional. Indeed, bills like this have been introduced in many states to limit judicial power.

My fear is that “judicial independence” is too abstract a value to resonate with voters. When judges are on the ballot, via election or even retention, it is too easy to look at them like any other politician. But as Chief Justice John Roberts declared: “Judges are not politicians, even when they come to the bench by way of the ballot.”

The vital importance of judicial independence is not a new realization. One of the grievances enumerated in the Declaration of Independence was how the King of England effectively controlled the judiciary by removing judges. As conservative lawyer Ted Olson explained: “[I]n this country we accept the decisions of judges, even when we disagree on the merits, because the process itself is vastly more important than any individual decision.… [A]bsent lawlessness or corruption in the judiciary, which is astonishingly rare in this country, impeaching judges who render decisions we do not like is not the answer.”

I hope that voters in the California primary and elsewhere will recognize the crucial importance of judicial independence. Removing judges because of the political party of the governor who appointed or because of disagreement with a particular ruling will have long-lasting consequences that will undermine justice and the rule of law.

Erwin Chemerinsky is dean and professor of law at the UC Berkeley School of Law; echemerinsky@law.berkeley.edu.

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