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Law Practice,
Judges and Judiciary

May 7, 2018

Still not my vote

We in the judiciary and the legal professions must inform the public how an independent judiciary is vital to our democracy.

2nd Appellate District, Division 6

Arthur Gilbert

Presiding Justice, 2nd District Court of Appeal, Division 6

UC Berkeley School of Law, 1963

Arthur's previous columns are available on


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 14 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 DA'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 a while. 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.


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