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Posts Tagged ‘judicial independence’

https://cdn.morguefile.com/imageData/public/files/d/DodgertonSkillhause/03/l/1456878178af2si.jpgSanta Clara County Superior Court Judge Aaron Persky was recalled Tuesday. He’s the jurist who faced huge blow-back for sentencing Stanford University student Brock Turner to what many believed a too lenient 6 months rather than as much as 14 years for sexual assault and attempted rape of an unconscious 22-year old woman. In a May interview the judge said he had no regrets over the sentence he gave Turner.

Persky, a judge since 2003, was turned out by the county’s electorate by a vote just under 60%. See “California Voters Remove Judge Aaron Persky.”

It’s been 86 years since a California judge was last recalled. It’s rare. Incumbent judges rarely lose. And so-called merit-selected judges up for retention also almost never lose. Yet given the overreaction of Judge Persky’s defenders, you’d have thought the legal system cratered. That’s because his defenders don’t put much stock on judicial accountability like they do on the sancrosanctity of judicial independence.

https://upload.wikimedia.org/wikipedia/commons/thumb/1/11/Angry_mob_of_four.jpg/320px-Angry_mob_of_four.jpg

At Flickr by Robert Couse-Baker, Creative Commons Attribution License

Per one account, “LaDoris Cordell, a retired judge and a spokeswoman for Judge Persky, called the recall an attack on judicial independence and said it had “encouraged people to think of judges as no more than politicians.” Conveniently omitted by the judge is that Persky was — after all — an elected public servant ultimately answerable to voters. Meantime, Palo Alto’s newspaper was also over-the-top editorializing that the Persky recall campaign had spawned “a lynch-mob movement that threatens the independence of the judiciary.”

And as for the ‘politicians in robes’ argument, it’s not like legal scholars haven’t argued that judges’ decisions are best explained by their political preferences.

Accountability

So what about the electorate? Are voters’ opinions irrelevant? And when did holding judges accountable become a kind of societal evil? Besides, if a judicial recall is wrong-headed, what other recourse is left to a community in cases like Judge Persky’s? Not even those opining against“recalling judges just because we don’t like their decisions” have good answers. Writing at The Hill lawyer Joel Cohen for one, swats at holding judges accountable, “But to the extent that judicial independence is a core value, we need to find a better way to ensure that decisions by elected state court judges don’t bow to the caprice of the electorate.”

Is there “a better way“? As it is, when judges engage in misconduct or violate professional ethics rules, judicial disciplinary commissions who operate mostly in secret mainly treat such ethics violations with wrist slips administered with kid gloves. An instance of one such wrist slap was the complaint of several years ago by the president of Houston’s defense bar association over the punishment meted out by the state commission on judicial conduct to former Judge Woody Denson. “Nothing ever happens, no one is ever disciplined and there’s no accountability back to anyone for anything,” he protested also adding “And it’s very secretive if anything ever does happen.”

It’s not just a Texas problem either. In 2015, St. Louis Public Radio ran a story about the alleged ineffectiveness of Missouri’s judicial watchdogs, “Missouri’s code of conduct for judges rarely leads to disciplinary action.” According to the report, “About 240 complaints are made against judges in the state of Missouri each year. When complaints are filed—and they can be, by citizens, city officials and other judges–they rarely result in disciplinary action.” Quoting St. Louis University Law professor Brendan Roediger, “The process is very secretive. Sometimes there were rumors around courthouses but that was about it.”

And according to a USA Today report, “Troubling trend: When judges need disciplining.“The Center for Judicial Ethics at the National Center for State Courts serves as a clearinghouse for judicial discipline and tracks misdeeds nationwide. Their records show that removing a judge from the bench is rare. In 2013, only five judges were removed from the bench nationwide, and 17 resigned or retired in lieu of removal. Also see Wisconsin’s Post-Current investigation, “Judges never evaluated, rarely challenged” and “Disciplinary Panel Rarely Takes Action Against Idaho Judges.”

Wikimedia Commons, public domain

To be clear, Judge Persky did not violate any canons of judicial ethics in People v Turner.  Moreover, the state commission on judicial performance concluded in its 12-page report “that there is not clear and convincing evidence of bias, abuse of authority, or other basis to conclude that Judge Persky engaged in judicial misconduct warranting discipline.”

Just the same, those campaigning against Judge Persky took exception calling the report:

a one-sided, closed-door proceeding that resulted in an error-ridden report (the “Persky Report”) by an agency with a long history of protecting judges. The Commission only imposes discipline in approximately 3% of cases, even though one study showed that similar states impose discipline at three to four times that rate. At the same time, the Commission refuses to provide any information about why it disciplines judges at such a low rate. In 2016, the Commission sued to block the State Auditor from completing a performance review ordered by the state legislature. As a result of this lack of transparency and oversight, the respected Center for Public Integrity recently gave California an “F” for judicial accountability in a detailed state study.

Recall proponents justified their campaign because, “It’s clear we need judges who understand sexual assault and violence against women and take it seriously. It’s up to us, the voters, to make a difference.”

In other words, when elected officials are found wanting and oversight watchdogs are napping under a tree, it’s left to the people to act as a final check. Long ago in his 1801 letter to Benjamin Waring Thomas Jefferson wrote, “The will of the people. . . is the only legitimate foundation of any government, and to protect its free expression should be our first object.”

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File:Newt Gingrich by Gage Skidmore 3.jpg

Photo by Gage Skidmore

Toxic? You’d have thought so from the reaction to the stink bomb set off by GOP presidential candidate Newt Gingrich’s bashing of judges at last week’s final Iowa debate. And he ain’t backing down, both at a follow-up media conference afterward and in an Op-Ed in last Tuesday’s USA Today“A dangerous despotism.”

File:Henny penny.JPGThe acorns are falling. And predictably, the usual ‘Henny Pennies’ and ‘Chicken Lickens’ have started running around.

Why it’s a veritable danse macabre over the supposed end of judicial independence.

Sure Newt’s over-the-top. Subpoenaing judges before Congress? Eliminating the 9th Circuit? Oh – – – puhleeze, he’s trying to be the nominee. You’d of thought he was threatening to treat judges the way Romney did his dog, Seamus.

An overreaction to political pandering.

Anymore, though, it seems that whether there’s a smidgen or a slew, any criticism of the judiciary invites knee-jerk caterwauling, hair-pulling and breast-beating mortification. Oh, the humanity!”

And notwithstanding the Newster’s bombastic bloviating, the rebuttals are as incendiary as the flammable vapors giving the self-aggrandizing gas-bag his lift. I doubt, for example, that “Gingrich’s threats against judges go way beyond the pale.” And no, Edwin Chemerinsky, bashing judges, is not the end of democracy.

File:Cancuenpanel3.jpgAnyway, according to the Mayan Calendar apocalypse countdown,  the end of the world is still another 365 Christmas shopping days away, exactly one year from yesterday. Having survived Harold Camping and the last “Judgment Day,” I’m still planning to mail my holiday cards next Christmas – – – even with the “End of the world speculation after a new Mayan discovery.”

Dignity of the conch.

“What was the sensible thing to do? There was no Piggy to talk sense. There was no solemn assembly for debate nor dignity of the conch.” – Sir William Golding , Lord of the Flies (1954)

Actually, last Monday there was indeed an intellectually provocative debate, “Newt’s radical proposals for federal judges,” between UCLA Law School Professor Eugene Volokh and Chapman University Law School Professor John Eastman.

It aired on 89.3 KPCC in Los Angeles on the program, AirTalk for December 20, 2011. Download it here, as it’s a worthwhile half-hour of listening.

Volokh was on the supposed Liberal side defending the purported threats to judicial independence while Eastman was again trotted out as the supposed Right’s reliable War Horse decrying activist judges and defending Originalism.

A pretty secure gig.

In the nation’s entire history, only 15 federal judges have ever been impeached. It’s a pretty good gig, as I’ve frequently blogged on merit selection and retention elections as well as on abiding judicial endurance, “If Ringo Starr can work past 70, what’s wrong with lifetime federal judges?”

Longevity? Endurance? Here’s an instance. Tying a federal bench record for energizer bunny-like constancy, still active Senior U.S. District Judge Wesley Brown turned 104 this past June.

At the time of our country’s founding, the average lifespan was 40. Supreme court judges now serve an average of 25.5 years. So it’s a long wait between appointments.

And as far as for job security where retention elections are involved, Job security means working for the feds or sitting for judicial retention elections.” Like that old wristwatch commercial and that drum-beating rabbit, they keep on ticking – – – imperviously.

And notwithstanding the penitential hairshirt-wearing worriers, it took half a century before any judges finally lost a retention election in the anti-judicial independence bad boy jurisdiction of Iowa. See “The return of politics in judicial retention elections.”

And what about accountability?

So what about accountability? It seems to be tossed aside to protect the sanctity of judicial independence. To proponents, judicial independence is forever the 6-year-old crossing the street on her own for the first time.

As reported at “Merit selection & retention elections: Lifetime- tenure-light,” only a scant 1% of judges ever lose a judicial retention election. And even when bad things do happen, unlike lawyers where accountability can mean disbarment, face-saving resignation and deferential pension-protecting retirement are more likely outcomes, like the discipline of Judge James EnEarl and Florida First District Court Judge Paul Hawkes, the appeals court judge resigns over “Taj Mahal” case and just this week, Brunswick Superior Court Judge Amanda F. Williams, the “Powerful Ga. Judge Facing Ethics Probe to Resign.”

Little wonder, for example, that at “Who Judges the Judges?,” the Gotham Gazette‘s David King reports how judicial accountability in New York leaves some wanting, “Observers and many people who have had bad experiences say the state’s judicial watchdog ignores major complaints to focus on infractions of low-level judges, dismisses many worthy complaints and does all this in secrecy.”

And as for Judge Williams, was she ever mad at Ira Glass’s telling profile, “Very Tough Love” | This American Life. I have no doubt Glass was happy he wasn’t a lawyer regularly appearing before her. Access here the actual charges, In re: Inquiry Concerning Judge Amanda F. Williams, before the Georgia State Commission on Judicial Qualifications. Also see Ira’s blog post, “Judge Williams Steps Down.”

At its crux, then, to have any intellectual honesty – let alone any credibility, any debate on judicial independence must address its tension with the equally valuable principle of judicial accountability. And if it’s insufficient reason for elites to deign acknowledge the divergent whims of the hoi polloi, then certainly there’s that other touchstone called the Constitution to consider.

Moreover, any useful discussion must also examine our premised three-branch system of governance and its supposed consistent checks and balances, which often are more attenuated than unfailing.

And last, it’s not going to be the end of the world to engage these topics in the cleansing sunlight – – – even if the discussion is triggered this time by a political blowhard.

And besides, my own presumed Mayan blood prognosticates that we have at least another year to talk about it, anyway.

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Photo credits: The Judge, woodcut from the Dance of Death series, 1523–26, 6.5 x 4.8 cm by Hans Holbein the Younger, public domain; Cancuenpanel3, licensed under the Creative Commons Attribution-Share Alike 2.5 Generic license.

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