A fair and impartial judiciary free of outside influences is a cornerstone of our democracy. Yet, in response to an intensely politicized and very well-funded campaign, motivated by a visceral reaction against a criminal sentence in a highly charged case, on June 5, Santa Clara County voters recalled Superior Court Judge Aaron Persky. This marked the first recall of a California judge in 86 years since three judges who exploited their positions for personal political and monetary gain were recalled in 1932.
The outrage expressed by recall proponents, over a sentence imposed in 2015, sparked nationwide anger and publicity that overwhelmed reasonable debate about whether a judge who made a lawful but unpopular decision should be subjected to a recall by the voters. The California Judges Association believes that no sitting judge should be exposed to a recall petition under such circumstances, even when the case involves an issue as important as sexual assault on a college campus.
Judges must make decisions every day that are unpopular with one group or another, or with politically powerful individuals. Recall by the electorate must be reserved to remedy those rare situations where a judge has committed malfeasance while in office, whether it be unethical or criminal behavior. Judge Persky followed the law, a law which allowed for a probationary sentence. This law troubled the Legislature and now it has been amended to require a state prison sentence.
The judiciary must be free of political influences so that judges can make tough and potentially controversial decisions in accordance with the law. All citizens should be troubled by the politicization of our courts. When any litigant comes before a court, they rely upon the judge to impartially rule on the case, exclusively according to the evidence and the law. A judge should never submit to external influences such as public passions, partisan political pressure, or fear of reprisal. The rule of law --preservation of an impartial judiciary as a check upon the two partisan political branches -- is the bedrock for our entire system of government.
The recall represents a serious assault on judicial independence, a development of deep concern to judges and attorneys throughout California. Constitutional scholars from across the political spectrum, and even the Santa Clara County district attorney whose office prosecuted the case in question, opposed the recall. These legal professionals agree that our justice system provides adequate remedies for abuse of judicial discretion, through appeal, legislation to reform unjust laws, or discipline rendered by the constitutionally created Commission on Judicial Performance. Indeed, these remedies adequately address the core issue presented by the case which gave rise to the recall petition.
The goal of the California Judges Association is that in the future, absent unlawful or unethical conduct, a judge who renders an unpopular decision will not be subject to recall. Preservation of the rule of law, and our democracy, demands no less.