Hundreds of thousands of people have signed petitions calling for the removal of Santa Clara Superior Court Judge Aaron Persky because of his disturbingly light six-month sentence of Stanford student Brock Turner for the 2015 sexual assault of an unconscious woman. The American political system is set up to encourage that kind of public outcry – and the American judicial system is crafted to protect judges like Persky from it. Judges should be able to make their rulings based on the law and the evidence that are before them, and not on the heated debate that takes place outside the courthouse walls.
The judicial independence that is generally celebrated in theory is often publicly ridiculed or lamented when it’s exercised, as in Persky’s recent sentencing decision. In fact there is and necessarily must be some cracks in the wall that insulates the judicial world from the political one. Politics and popular opinion affect the justice system in many ways, including the election of the governor who does the appointing and the lawmakers who write the bills that define crimes and set sentence lengths. In California the people, too, have a direct hand in writing the laws through the initiative process.
But they also vote for judges and have the power to remove them, and it’s fair to ask why they have that power if they are never supposed to use it.
Persky was up for re-election this year and drew no opponents, so his name didn’t even appear on the ballot, but he still could be forced onto the November ballot if a proposed write-in campaign against him qualifies. And he could also be the subject of a recall election, as in the similar case last year of Orange County Superior Court Judge M. Marc Kelly.
Kelly imposed a 10-year sentence for the rape of a 3-year-old girl – less than the 25 years to life provided for by law. The judge explained that he believed the law was unconstitutional.
The sentence has been appealed, and that serves as a reminder of the proper remedy for sentences that don’t comply with the law: appeal to a higher court.
Some of Persky’s critics have called for action from the Commission on Judicial Performance, the discipline panel that is empowered to remove a judge for corruption, ethical lapses or incapacity. But the commission does not have power – nor should it – to remove a judge because of rulings that outrage the public.
That leaves the voters. But if we argue, as we do, that voters should not oust a judge because of a single ruling, what should they do? There is already too little information for voters to make informed decisions on judicial elections, so it would be asking a lot to expect them to identify the judges who repeatedly make bad decisions and target them for removal.
Critics of judicial elections call for California to adopt a federal-type system of lifetime appointments, but it’s hard for us to see state lawmakers as similar in stature or ability to the U.S. Senate, which confirms federal judicial appointees. In the tug-of-war between judges’ independence and accountability, though, it’s also increasingly difficult to muster the arguments for continuing to elect them.
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