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Monday, June 11, 2018

Two thoughts on the recall of Judge Persky

Having listened and read various discussions about last week's recall of California trial judge Aaron Persky, I was struck by two points lost in some of the coverage.

First, there is a lot of focus on Persky being recalled and this being the first time in 100 years that has happened. But the issue should be less about recall than about any procedure to remove judges from the bench in response to unpopular rulings. While there had not been a successful recall of a judge in California, critics have successfully targeted judges for removal through other processes. Most famously, three members of the Supreme Court lost retention elections in 1986 following a campaign targeting their decisions in capital-punishment cases. And the anti-Persky movement would have been as problematic had critics found and supported someone to run against him for the seat when it next was up in 2022, when similarly based on disagreement with the Brock Turner decision.

Second, this drives home that the issue for judicial independence is not how judges are initially selected (election, political appointment, judicial commission, some combination), but whether and how they can be removed once on the bench. It does not matter whether Persky reached the bench via election (as he tried, but failed to do) or appointment (as he did). The issue is that, once on the bench, he could be recalled (or not retained or not re-elected) because of his rulings.

Posted by Howard Wasserman on June 11, 2018 at 12:07 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink


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Posted by: بازی آنلاین جدید | Jun 11, 2018 6:22:47 PM

So if the supreme court justices had been removed after Plessy v. Ferguson, that would've been an injustice greater than Plessy v. Ferguson was?

I think if we can divorce our spouse, surely we can divorce our judges.

Perhaps if passing an amendment was easier, we could just reverse judicial decisions when they are unconstitutional. But as FDR knew, it's easier to pack the court than pass social-security as an amendment.

Posted by: Marshalling Thurbad | Jun 11, 2018 11:32:16 AM

These are arguments for judicial term limits. That is different than mechanisms that allow removal of judges because of unpopular rulings, which is the concern I am getting at.

Posted by: Howard Wasserman | Jun 11, 2018 12:49:06 AM

Let's say you live in the south where there are anti-sodomy laws. Your first hope is to get a new legislature to repeal the law. But there are no term-limits on legislatures so they'll be there your whole life.

So your next hope is to get new judges who won't enforce the laws. But there are no term-limits on judges, so you're screwed there too.

So your next hope is to get a new police chief who'll hire people who won't arrest people who break the law. But the police chief has a lifetime appointment as well.

So you move to San Francisco.

This mass-migration of homosexuals fleeing sodomy-persecutions could've all been avoided if you could hope for new judges every ten years, or new policemen every ten years, or better yet, all new state senators every six years.

But no, you have lifetime appointments, so you are ruled by men, just like kings.

Justice Kennedy, you're my only hope!

If only the founders had divided government power among many men, rather than giving it all to Justice Kennedy.

Posted by: Kim Jung Term-Limit | Jun 11, 2018 12:46:04 AM

We have to remember that Judicial Independence is a means to the end of such things as due process.

Another American value is finite terms, or being ruled by different people during one's lifetime, rather than being ruled by the same person (or family) during one's lifetime.

Part of the way you make sure that you are ruled by laws rather than (hu)men, is to make sure those (hu)men are regularly changing, and they know that they will have to return to "normal civilian" status at some point and be subject to the laws they've created while not surrounded by secret service.

Posted by: Justice UnLearned Foot in the Door | Jun 11, 2018 12:27:20 AM

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