Judicial Independence on Trial with Judge’s Recall

Joel Fox
Editor and Co-Publisher of Fox and Hounds Daily

A judge’s recall moves forward as another test to California’s judiciary and a challenge to judicial independence. Judge Aaron Persky will face voters in a recall election now that enough signatures have been certified to present his recall to voters.

A light sentence delivered by Persky against Stanford swimmer Brock Turner for rape of an unconscious young woman spurred the recall. Yet, the decision the voters will make at the polls has meaning beyond deciding the qualifications of this one judge to maintain his position.

The declaration that the recall would go forth caused me to dig up my article published on this site from nearly two years ago when the recall effort was announced. I expressed dismay at the sentence and sympathy for the victim, recalling my own college days experience when I was a witness for the prosecution in a rape trial.

But I raised concerns about an independent judiciary that could be undercut by responding to public emotion.

Erwin Chemerinsky, Dean of the UC Berkeley law school, and noted liberal scholar, argued in a recent Sacramento Bee article that, “Judicial independence is crucial to upholding the rule of law, and history shows that it is lost when judges fear removal for their unpopular decisions.”

In my article from two years ago I noted:

Advocates of the recall want to make an example of Persky and send a message to other judges who sit on sexual assault cases. Sen. de León argued in a press release endorsing the recall, “We need more judges and elected leaders who are committed to both preventing and deterring rape and sexual assault, whether by enacting more tough laws in legislatures or through fierce penalties in the judicial system through the courts.”

De Leon’s suggestion of “enacting more tough laws” is precisely the concern voiced by opponents of a recall attempt. They fear Persky’s leniency could lead to specific sentences mandated by law taking discretion away from jurists. As defense attorneys who rallied to Persky’s side claimed, a recall would “have a chilling effect on judicial courage and compassion.”

The concern of pressuring the courts to rule on other than the law and judicial wisdom was expressed not only at the time Persky’s recall effort surfaced, but at the beginning of our country as well.

Again from my previous article:

The Marshall Project, named for former Supreme Court Justice Thurgood Marshall, notes in writing about the Stanford case, that while 19 states allow for recall of state officials, only 8 allow for recall for judges “because the judicial branch is traditionally seen as deserving protection from popular whim, political pressure, or, as in this case, the increasing influence of social media.”

The concern is as old as the country. Alexander Hamilton, writing Federalist Paper 78, defending the life appointment of federal judges, in essence argued that the judicial branch could safeguard against the tyranny of the majority by staying above political influence with secure appointments. The only standard judges would have to meet to hold office as ascribed in the Constitution was to maintain “good behavior.”

Does good behavior include one particular decision in a high profile case? If the judge’s ruling was within the bounds of the law and based on recommendations from the parole officer, is a recall justified?

I think not.

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