California’s federal judicial vacancies come to the forefront

With certain federal district courts operating with a profound number of judicial vacancies, court leaders are increasingly going public with the need to fully populate their benches. The most recent salvo has come from Chief Judge Virginia Phillips of the Central District of California, who wrote a letter to Senators Lindsey Graham, Dianne Feinstein, and Kamala Harris, urging them to find ways to fill the district’s vacancies.

The Central District of California, encompassing Los Angeles and environs, is authorized by federal law to have 28 active district judges. The Judicial Conference of the United States recently concluded that in fact, the district needs 38 full-time active judges to meet its workload. But the district is currently operating with only half that number (and nine formal vacancies). The last new judge was confirmed back in 2014.

The Central District has one of the heaviest workloads in the country, as measured by weighted caseload filings. Will California’s Democratic Senators and the Senate Judiciary Committee’s Republican leadership do the right thing and fill those vacancies? As we enter another election year, it’s hard to be optimistic.

Surprise me, Senators. Do the right thing.

California’s Chief Justice makes an unhelpful announcement

California’s Chief Justice, Tani Cantil-Sakauye, announced yesterday that she had left the Republican Party and had re-registered without party affiliation. She explained that her decision had been spurred by the confirmation of Brett Kavanaugh to the U.S. Supreme Court.  

“I’ve been thinking about it for some time,” Cantil-Sakauye said, noting that she had discussed her decision with her husband and friends. They told her, Cantil-Sakauye said, “you didn’t leave the party. The party left you.”

Chief Justice Cantil-Sakauye is, of course, entitled to do whatever she wishes with her party affiliation, and she joins many prominent former Republicans who have left the party since the election of Donald Trump. There is nothing in the least bit wrong with her personal decision. But then she dropped this little nugget:

“I felt compelled to make a choice now. It better suits what I do and how I approach issues.”

Oh, dear.

The Chief Justice could have simply stated that she had changed parties as a personal matter, and that no party influenced her decisions on the cases that came before her. Now she has made her political beliefs an explicit part of her job description. I do not want to suggest at all that judges are oblivious to politics, or even that political considerations do not affect judicial decisions. But to place one’s own party affiliation at the core of “what [one] do[es] and how [one] approach[es] issues” is singularly unhelpful for building confidence in the judiciary.

 

Post-election judicial roundup

Many states had judges and issues affecting the judiciary on their ballots this week. Here are some of the more noteworthy outcomes from several western states:

In California, state supreme court Associate Justice Carol Corrigan was retained by voters by about a 2-1 margin. Corrigan had been the target of an anti-retention campaign by several LGBT groups, who took issue with her dissent in the state supreme court’s decision legalizing same-sex marriage in 2008. Happily, most voters (regardless of how they felt about that case) properly viewed that opinion in the context of hundreds that Justice Corrigan has issued over her judicial career.

In Alaska, Judge Michael Corey was not nearly as lucky. In a situation reminiscent of the mob that removed Judge Aaron Persky in California earlier this year, Judge Corey was targeted for non-retention by a group calling itself “No More Free Passes.” The group took issue with Judge Corey’s decision to approve a “no jail time” plea deal for a man accused of strangling a woman until she fell unconscious, and then masturbating on her. The problem for the prosecutors and for Judge Corey was that this sickening act does not qualify as a sex crime under Alaska law. Consistent with existing law, the district attorney proposed a plea deal that allowed the defendant to walk away without jail time, and Judge Corey approved it.

It’s not hard to see why this decision would raise anger about the state of the law, and mobilize people to change it. But instead, Judge Corey became the target, and “No More Free Passes” ran a successful social media campaign to prevent his retention. This despite his excellent performance review (which was issued before the plea deal was approved).

The leader of “No More Free Passes” admitted that its removal of Judge Corey was largely symbolic, and that its main focus was on changing the law. In a Facebook post, she stated that the group “will no longer be discussing Mr. Corey…. We wish him nothing but the best in his future.” That is cold comfort for an excellent judge whose only fault was following the law. Congratulations to “No More Free Passes” on destroying a judge’s career purely as an act of symbolism. I hope you sleep well at night.

In Colorado, voters narrowly defeated Amendment W, which would have streamlined the judicial retention ballot in future elections. A majority of voters supported the amendment, but “yes” votes did not meet the 55% supermajority threshold required for passage.

Out of more than 100 judges on the Colorado retention ballot, two were not retained by voters. Both judges had received poor performance evaluations from Colorado’s official JPE program.  Several other judges were targeted by anti-retention groups or individuals, but  had received strong performance evaluations and were comfortably retained by voters.

In New Mexico, which uses a mixed judicial selection system (judges must initially run for their seats in contested elections, and afterward face retention), voters radically overhauled the state court of appeals. Four new judges were elected–all women, and all Democrats–giving women eight of the ten seats on the court. Another court of appeals judge, Michael Vigil, left his seat to run for the state supreme court, and handily defeated incumbent Gary Clingman. Vigil’s seat will be filled by gubernatorial appointment. The only male judge left on the court, Judge J. Miles Hanisee, was retained by a comfortable margin.

New Mexico voters were also asked to “clear the bench” of judges by an anonymous group starting early this year. While the movement had little impact on the state’s appellate and district courts, four Metropolitan Court judges failed to reach the 57% threshold for retention. Of the four who were not retained, two were not recommended for retention by the state’s judicial performance evaluation commission. Two other judges who likewise were not recommended for retention just squeaked over the retention threshold, with 57.15% and 57.02% of the vote, respectively.

In Arizona, state supreme court Justice Clint Bollick was comfortably retained by voters despite an anti-retention effort funded by the National Education Association.

And in Texas, one of only two states that permits voters to simply vote a straight party ticket, a Democratic wave unseated nineteen incumbent Republican judges on the state’s  intermediate appellate courts. This party sweep (which is not uncommon in Texas) will lead to two related consequences for the appellate courts. First, a number of highly experienced judges are now out of a job. Second, the learning curve for the new judges will take time. I do not envy anyone with cases pending in those courts over the next several months, as an entirely new judiciary gets it feet wet.

UPDATE 11/16/18: The post has been revised to reflect the Colorado supermajority requirement for Amendment W.

 

In the wake of the ugly Aaron Persky recall, a new group arises

The June recall of Judge Aaron Persky in California has led to the formation of a new group, dedicated to making it harder for politically motivated mobs to remove judges from the bench. The Daily Post reports:

San Joaquin County Superior Court Judge Barbara Kronlund, the co-chair of the newly launched Judicial Fairness Coalition, said the group wants to educate the public on the role of judges and look at amending state law to avoid future recalls over unpopular decisions.

“There should be a requirement of misconduct in office, either high crimes, misdemeanors, violating the Code of Judicial Ethics, hearing a case where you have a conflict,” Kronlund said. “It seems to me that makes a lot more sense than what we’ve got going on right now.”

Kronlund has been giving talks to Rotary and Kiwanis groups about the dangers of “baseless” attacks on judges since 2006, after Sacramento County Superior Court Judge Loren McMaster faced a recall threat from gay marriage opponents over his ruling in favor of same-sex domestic partnerships.

Los Angeles Superior Court Judge Paul Bacigalupo, co-chair of the new coalition and president of the California Judges Association, said he also wanted to look into changing the code of judicial conduct to loosen up the restrictions on judges talking about their cases.

That would allow judges to respond to criticism of their decisions, which Persky wasn’t able to do when opponents slammed him over the six-month jail sentence he gave to Stanford sex assailant Brock Turner.

As I have noted repeatedly, one can vehemently disagree with the leniency of the Turner sentence, and still conclude that the removal of Judge Persky was wholly irresponsible. That doesn’t mean that recall should be off the books entirely; if a judge repeatedly shows incompetence or indifference in applying the law or guaranteeing procedural fairness to all parties, a mechanism for removal may well be appropriate. It will be interesting to see how (and if) the Judicial Fairness Coalition works to address that balance.

On the Aaron Persky recall

Today, California voters go to the polls to determine whether Judge Aaron Persky should be recalled. Persky, of course, is known for handing an extraordinarily light sentence to Brock Turner, the Stanford swimmer convicted of three counts of sexual assault.

Turner’s conduct was unconscionable, and his sentence shockingly light. But the effort to recall Persky for that single act of sentencing is itself an awful idea that should have been put down long ago. Here is what I wrote last July:

Turner’s actions were hideous, and it is certainly understandable why a light sentence would be greeted with surprise and even outrage.  And Judge Persky’s standard defense–that any challenge to his discretion would compromise judicial independence–sounds almost ridiculous in this context.  But the recall effort is still a terrible idea.

Judicial recall, non-retention, and impeachment are all tempting weapons of the outraged class who seek to remove or punish a judge for a single controversial decision. California is no stranger to this sort of activity. In 1986, three state supreme court justices were successfully targeted for non-retention based on a single decision the court had rendered on the death penalty. Across the country, similar efforts have targeted judges for their decisions on everything from same-sex marriage to the disposition of property. Attacks have come both from the left and the right. The unifying theme of these efforts has been to try to wedge a judge’s entire career into a single decision. Never do they even attempt to consider or reflect upon the judge’s overall performance, skill, or temperament.

That is because efforts such as this serve one purpose: to score political points. Sometimes the goal is to drive voters to the polls in a general election to improve a political party’s overall prospects. Sometimes the goal is tactical, to create an opening on the bench that could be filled by a politically like-minded politician. Sometimes it reflects a deep misunderstanding of the judge’s ruling. Sometimes it is mere virtue signalling.

So it is here.  I have seen nothing to indicate that those seeking to recall Judge Persky have ever previously expressed concern about his fitness as a judge. He has already been cleared of any abuse of discretion by a state commission. And while a comprehensive judicial performance evaluation program would provide helpful context on Judge Persky’s overall body of work, California has no such program.

One can be shocked and angered by the Brock Turner sentence and still see this recall effort as for what it is: a transparent and poorly thought-out effort to score points with a political base. Californians deserve better.

Mob justice is no justice. Will Californians preserve judicial independence (flawed as it may be) against the wrath of the mob, or will they sacrifice their judicial system to the political vultures? Today I am hopeful, if not terribly optimistic, that they will do the right thing.

California judiciary readies new sexual harassment guidelines

In the wake of the federal court system’s formation of a working group to address sexual harassment in the judiciary, the California courts have formed their own working group to address the same issue. Among other things, Chief Justice Tani Cantil-Sakauye is pushing for a change to the current court rules that would require public disclosure of settlements for sexual harassment claims involving judges. Proposed new rules should be unveiled in the next few weeks.

Berkeley launches Judicial Institute

The University of California, Berkeley has launched a new Judicial Institute to explore the personal and professional issues that judges face. The Institute will be run by the Hon. Jeremy Fogel, U.S. District Judge for the Northern District of California, and for seven years the head of the Federal Judicial Center.

This is an exciting project, and landing Judge Fogel is a major coup. I’ll look forward to following the Institute’s work in the coming months and years.