A number of California law professors, including more than half of my colleagues at Stanford Law School, published a letter opposing the recall of Santa Clara County Superior Court Judge Aaron Persky.
The light six-month sentence imposed by Judge Persky in the Brock Turner case sparked outrage in the community and triggered the recall effort. Turner was convicted of sexually penetrating an unconscious woman on the Stanford campus. The Turner case was not an aberration for Judge Persky. He has a history of granting lenient treatment to privileged men, such as college athletes, who are convicted of sex crimes and violence against women.
The law professors’ letter expresses concern for judicial independence should the recall effort succeed. While I respect them greatly, I must explain why they are wrong about judicial independence and about Judge Persky.
The American system of law is unique. Our Constitution separates powers, not just by the three functions of government, but also by the locus of where that power is exercised. American federalism recognizes that the state and federal governments are co-equal servants who exercise the people’s sovereignty on our behalf.
One key difference between them is that the federal government, under Article I, Sect. 8 of the Constitution, is a servant of limited powers, while our state governments enjoy plenary police powers.
This difference extends to state and federal court systems. Federal judges exercise extensive judicial independence. They are relatively insulated from political winds and the pressures that accompany them. But their jurisdiction is also limited. There are very few federal crimes, and the authority of federal judges is largely limited to narrow questions of federal constitutional and statutory law, as well as interstate civil disputes.
On the other hand, in California and in many other states, state court judges such as Persky are elected, not appointed. This is for good reason. Their authority over our daily lives is extensive, and they can hear all cases, including ones involving federal law. Criminal law is largely the purview of state and local governments.
To abandon this distinction, and treat state court judges like federal judges, ignores both the structure of our federalist system of justice, as well as the necessary limits on judicial independence. Judges must not fear that straightforward applications of the law would result in their removal. But in California, judges are subject to election and recall elections precisely because their judgment is expected to reflect community standards.
For this reason, the signatories of the law professors’ letter admit that there are circumstances that could justify a recall, for example if a judge “exhibits bias that leads to systematic injustice in their courtrooms.” They apparently do not agree that the injustice that women have experienced in Judge Persky’s courtroom is enough to justify a recall. But that’s not for them to say. That’s a judgment call, and California’s Constitution explicitly places it in the hands of the people to decide, in accordance with their values.
Trial lawyers have an old saying that “a famous state court judge is a soon-to-be former state court judge.” The truth in this old saw stems from the fact that state court judges maintain their anonymity by issuing rulings consistent with the expectations of the communities they represent. Judge Persky has demonstrated that his indulgent views regarding male college athletes may not be in line with those of the community he represents. For this, Judge Persky has become “a famous state court judge.” It should now be up to the voters to determine whether he is a “soon-to-be-former state court judge.”
Originally posted in The San Francisco Chronicle
By G. Marcus Cole
G. Marcus Cole is the William F. Baxter-Visa International Professor of Law at Stanford Law School.
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