One recall vote today concerns a judge handing down a lenient sentence in a sexual assault case. The other recall is against a state senator for voting for a gas tax increase. Despite the differences in the offices and the charges made against the incumbents, the defense of each man is pretty much the same: a successful recall against an official making a reasoned decision will chill the judicial and democratic processes.
There are more layers to the efforts to remove Santa Clara County Judge Aaron Persky and state senator Josh Newman (D-Fullerton) from office. The recall campaign against Persky comes against the backdrop of the #MeToo movement and a major drive to create cultural change regarding sexual harassment and interactions between the sexes. The Newman recall is shadowed by political overtones with the Republican Party seeing an opportunity to not only gain leverage by reducing the Democrats two-thirds supermajority in the Senate, but also framing an issue that could help the party find acceptance from the state’s voters.
Persky got in hot water with members of the public for giving Stanford student Brock Turner a six-month sentence for sexually penetrating an unconscious woman. The victim delivered an eloquent statement to the court on her sufferings due to Turner’s actions.
Newman, an upset and narrow winner in his first senate race, voted for a gas tax increase that made him vulnerable to an attack because he represents a district that historically is part of anti-tax country.
Both men argue that independent decision-making is put at risk if they are thrown from office. Should one decision trigger a recall effort? Shall judges and legislators bend to the will of the majority—some would use the word mob—before using their best judgment in making a decision? After all, advocates for the two would argue that a judge or legislator has studied an issue more closely than voters who see a headline or news story.
The independence issue is valid but both campaigns are caught up in current politics.
Perhaps the judge’s argument carries more weight because the issue of a judge’s ability to make judgments outside popular sentiment is a long established idea. 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 recall of elected officials, while introduced in the 1787 Constitutional Convention as part of the Virginia Plan, was not endorsed by the convention delegates.
Accepting the idea that both judicial and democratic processes are equally endangered has not been recognized even by opponents of one of the recalls. Indeed, a number of Democratic state legislators who oppose the Newman recall, including former senate president Kevin de Leon, publicly support the Persky recall.
Still, the people rule and the recall is a mechanism built into the state constitution for voters to respond to elected officials actions prior to regularly scheduled elections. And unlike the federal judiciary, California judges must face the voters.
The recall has been and will continue to be used as a political weapon in California, especially if the recall efforts in this election are successful.