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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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photoI like to read book reviews the way some people like to read cookbooks. But unlike some of those cookbook readers who are content only to read and not cook, my interest is often piqued enough that I find myself compelled to read some of the books reviewed.

File:Thomas Jefferson by Rembrandt Peale, 1800.jpgSo last month after reading several reviews of Henry Wiencek’s Master Of The Mountain: Thomas Jefferson and His Slaves, I decided to read it.

But since I’m always knee-deep in queued books, I’m still marinating and refrigerating old Tom like a tenderloin for later consumption.

Deifying the old guys.

I’m not one for the cult of personality or the deification of past or present personages. I’m especially dead set against the popular trend of the past several years to idolize our nation’s Founders. Stop embalming the Constitution’s framers in infallability Columbia University History Professor Simon Schama wrote last year in “The Founding Fathers, Unzipped.”

Schama who said,“True history is the enemy of reverence,” laid bare not only Thomas Jefferson but Alexander Hamilton and John Adams.  Concerning Jefferson, it wasn’t so much the well-known revelation that he’d owned slaves but that Jefferson had also rejected the tenet that Jesus Christ was the Son of God along with such things as “the Trinity, the Virgin Birth, and the Resurrection.”

Founding Father Fashionistas.

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All that said, it’s still never-no-mind for Founding Father fashionistas among our never-say-die judicial Originalists and “Tea party” types who genuflect at the mere mention of the Founders.

The truth is that our history isn’t as clean or consistent with such veneration, especially if we concede the inherent irony of the late George Carlin’s scoff, “This country was founded by slave owners who wanted to be free.”

Ever since the 1998 DNA study revealing old Tom fathered Eston Hemmings and likely all of slave Sally Hemmings’ children, like on a worn old nickel, that image’s become a bit dulled.

“Monster of Monticello.”

photoBut as it turns out I may now have to take the loin out of the fridge — marinated or not — and read Wiencek’s book on the strength of Duke University law professor Paul Finkelman’s scathing takedown Saturday of the “The Monster of Monticello” and “the ugly truth: the third president was a creepy, brutal hypocrite.” Finkelman’s critique brushes aside Jon Meacham’s just published Thomas Jefferson: The Art of Power for generally overlooking that our third President owned slaves. Professor Finkelman takes more issue with Henry Wiencek’s book and mounts an unsparing assault on Jefferson not as the “fallen angel” drawn by Wiencek but as a willful “horrible racist.”

“Contrary to Mr. Wiencek’s depiction, Jefferson was always deeply committed to slavery, and even more deeply hostile to the welfare of blacks, slave or free. His proslavery views were shaped not only by money and status but also by his deeply racist views, which he tried to justify through pseudoscience.

“There is, it is true, a compelling paradox about Jefferson: when he wrote the Declaration of Independence, announcing the “self-evident” truth that all men are “created equal,” he owned some 175 slaves. Too often, scholars and readers use those facts as a crutch, to write off Jefferson’s inconvenient views as products of the time and the complexities of the human condition.

“But while many of his contemporaries, including George Washington, freed their slaves, during and after the revolution — inspired, perhaps, by the words of the Declaration — Jefferson did not. Over the subsequent 50 years, a period of extraordinary public service, Jefferson remained the master of Monticello, and a buyer and seller of human beings.

“Rather than encouraging his countrymen to liberate their slaves, he opposed both private manumission and public emancipation. Even at his death, Jefferson failed to fulfill the promise of his rhetoric: his will emancipated only his five slaves, all relatives of his mistress Sally Hemings, and condemned nearly 200 others to the auction block. Even Hemings remained a slave, though her children by Jefferson went free.

“Nor was Jefferson a particularly kind master. He sometimes punished slaves by selling them away from their families and friends, a retaliation that was incomprehensibly cruel even at the time.”

Most assuredly, Finkelman’s essay will raise the ire of Jefferson defenders like Rutgers History Professor Jan Lewis already dismayed, for example, with Henry Wiencek at “What Did Thomas Jefferson Really Think About Slavery?” Wait till she gets a load of Finkelman.

3rd U.S. president,famous people,government,males,men,people,persons,presidents,Thomas Jefferson,U.S. presidents,United States Presidents

Too bad that Jefferson’s apologists among the academy’s highbrows would rather hide behind self-convenient tropes like “Presentism,” which Jefferson-defender Douglas L. Wilson, for instance, relied on 20 years ago when then criticizing our “widespread inability to make appropriate allowances for prevailing historical conditions” and for daring to apply “contemporary or otherwise inappropriate standards to the past.”

Wilson indicted it as “a malaise that currently plagues American discussions of anything and everything concerning the past” and lamented the revisionism that has displaced “the uncritically positive and unabashedly patriotic approach that for so long characterized the teaching of American history in the public schools.”

With such a disturbing focus on past “problems and failures” and on what used to be “ignored or suppressed,” Wilson asked, “How should we remember the leading figures of our history? By their greatest achievements and most important contributions or by their personal failures and peccadilloes?”

“A Philosophic Cock”

File:Cock ca1804 attrib to JamesAkin AmericanAntiquarianSociety.pngFor me this is too much protest and pretense. Wilson’s peccadillo excuses have since been overtaken by DNA proof and by more sober analyses.

And not as though Jefferson didn’t have detractors among his contemporaries.

Furthermore, hero or villain either/or arguments raised by Wilson and by others present false choices. What’s wrong with an unvarnished examination of the events, the lives, and the development of a people and of their institutions? After all, isn’t that what history is about?

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Photo Credits: “Cookbook Reading Map 2,” by bibliosopher at Flickr via Creative Commons-licensed content requiring attribution;”Portrait of Thomas Jefferson by Rembrandt Peale in 1800″  by White House Historical Association, at Wikipedia Commons, public domain;”Fashion Statement: by tuppus at Flickr via Creative Commons-licensed content requiring attribution; “Thomas Jefferson – Mt. Rushmore,” by Aaron, Conspiracy of Happiness, at Flickr via Creative Commons-licensed content requiring attribution; Engraving: “‘A philosophic cock’ attributed to James Akin, Newburyport, Massachusetts, ca.1804.” Depicts a caricature of Thomas Jefferson and Sally Heming,” at Wikipedia Commons, public domain.

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