Judicial vote over, but impact lingers
San Francisco is finished with judicial elections for the year. Two incumbent judges were contested in March. The challengers raised over $1.1 million, compared to about $693,000 for the incumbents — astounding sums.
In the end, the incumbents prevailed. Even though the election is over, its impact will linger.
As a superior court judge in San Francisco, I’ve faced and survived my own electoral challenge. What do judges like me think about when our time to be challenged comes due?
We think about fundraising, political consultants, community activists, endorsements from politicians, unions, community organizations and so on. We think about the press, blogs, social media and the fact that some people say we’re responsible for the city’s ills.
And money, always money. We think about money for ads, lawyers, consultants and media clips on social media. Money for brochures, posters and door knockers. Money means solicitation, asking lawyers, friends, family and colleagues for it — but mostly asking lawyers.
Notice that this list of concerns doesn’t include our day job: the trials we’re conducting, the upcoming law and motion calendar, helping to operate the court system.
We consider politics, not judging. To paraphrase the chief justice of the United States, politicians speak for the people, judges don’t. Judges speak for the Constitution. That, in sum, is the independence of the judicial branch.
Can you imagine how this notion would go over at a debate in front of a political committee? Picture it: Incumbent judges get up and say they don’t represent city residents. And they won’t represent them if reelected. They won’t agitate for unions or management or animal rights. They won’t take sides in the endless strife between drivers and bicyclists. They’ll follow the law on bail without regard to public clamor over crime. They are speakers for the dead, attending to words in a document drafted in 1787.
Way to go, judges. Don’t let the door hit you on the way out.
(By the way, relying on old words isn’t the same as the “originalism” espoused by the conservatives on the Supreme Court: Justices from the liberal Ketanji Brown Jackson to the conservative Clarence Thomas agree we must rely on these old words.)
Of course, judges know they can be challenged, and many of them — some of the best — secured their positions through an election. But it wasn’t until I was challenged in 2018 that I began to consider the vast distance between judicial and political values — and the potential impact of that gulf.
The rhetoric of politics is hyperbole, distortion, invective and tirades. In the courtroom, this sort of conduct is punished.
While judges must not take money from those who may appear in their courts, we can when it comes to elections. We actually solicit it.
Judges are not allowed to comment on pending cases, except when it’s about a case at issue in the election.
While judges must be nonpartisan, and never show affiliation with party politics or elected officials, during an election campaign it is permissible to seek endorsements from the governor, senators and any other politician. I did.
If a law firm were to throw a big birthday bash for a judge and hand over a check, the judge would likely lose their job for violating judicial canons by fostering the perception of special influence with a judge by accepting gifts. During an election campaign, however, if the money can help save a judge’s job — it’s fine.
The values of a truly independent judiciary bend when it comes to elections. Do they also break?
Not everyone wants an independent judiciary or allegiance to the rule of law. They just want what they want.
I once had a case in which my tentative decision was to deny a motion because its deadline had been blown. I didn’t have the power to grant it. The lawyer asked me to ignore the law: The client was worthy. I was bewildered.
Just grant my motion, argued the lawyer.
In the moment, most people and lawyers just want to win.
“Judicial independence” is abstract and remote. It doesn’t get you where you live, in the gut. It’s not salient, like gas prices, closing schools or war. One might be upset if a judge seems swayed by politics writ large but not so much if the decision is favorable.
Like every other judge, I sometimes decide matters contrary to my views, imposing what seems to me to be the wrong result. I do it because the law tells me to do it. Or there’s an appellate decision from 20 years ago that says that’s the deal. I can’t wiggle around it.
Sometimes there isn’t solid, on-point guidance. Then, I might read the past 10 years of cases in the area and get a sense of its direction. Then I follow that direction, as best as I can figure it. That’s what I swore to do when I took this job.
Here’s what I don’t do: stick my hand outside the window and take the temperature.
It’s easy enough for me to shrug off politics. I passed this election season without facing a challenge. I am working on cases and doing my job. But how about the judges up for election next time? What do you want them to be thinking about as they decide cases?