JURIST Guest Columnist Steve Koslovsky discusses how more judicial elections harm judicial independence…

Remember Rose Bird? Back in 1986, Chief Justice Rose E. Bird, who was the first female Chief on the California Supreme Court, became the first Chief Justice removed from office. In a campaign organized largely by California conservatives and funded by business interests, voters removed her [PDF] from office largely based on her perceived liberal political views and consistent opposition to the death penalty.

Prior to her appointment to the Court, Bird had served as a public defender for eight years in Santa Clara County, and taught at Stanford Law School for two years. She died in 1999.

I mention Bird’s connections with Santa Clara County and Stanford University because feminist activists in the San Francisco area, led by another professor at Stanford Law School, are now seeking to remove by recall election Santa Clara County Superior Judge Aaron Persky for what they allege was an excessively lenient sentence of six months in jail, followed by three years’ probation, successful completion of a state sex offender rehabilitation program and lifelong registration as a sex offender, which Judge Persky gave to Stanford University swimmer Brock Turner, who had been found guilty of felony sexual assault of an incapacitated young woman in 2016.

The required signatures on the Persky recall petition were recently certified and the election is set for June of this year. One wonders whether the “liberal” Justice Bird would support or oppose the Persky recall effort. In addition to direct election of judges, and periodic retention elections for appointed judges, there are eight states which allow judicial recall elections. Of those, five states, including California, require no legal grounds whatsoever to support such a recall. Proponents need only satisfy the requirements for the number of signatures of registered voters, which varies from 10 to 30% of the voters who cast ballots in the last election for the office in question.

Three states (Georgia, Minnesota, and Montana) require that the petition state certain grounds for the recall. Among these are malfeasance, misconduct, failure to perform duties of the office, or conviction of a serious crime while in office. Georgia and Montana specifically exclude as grounds for recall the discretionary performance of a lawful act or mandatory duty.

However, even those states which require the petition to state grounds for recall have no mechanism in place to test the accuracy of a recall petition’s stated grounds. Conviction of a serious crime is an objective standard, but what about “malfeasance,” “misconduct,” or “failure to perform the duties of the office”? Would Justice Bird’s opposition to the death penalty satisfy one of these grounds? How about Judge Persky’s alleged lenient sentence? In those two states that exclude “discretionary performance of a lawful act,” probably not. Elsewhere, in today’s hyper-partisan world, it is not difficult to imagine arguments spun on both sides.

It is certainly not news that judicial elections of every kind have become ever more politicized. Recall elections represent but another tool in the ongoing effort to politically influence the judiciary, from both the right and the left. However, recall elections have one distinct advantage over other judicial elections: they can be forced at any time so long as enough signatures are gathered on a properly worded petition. (Judge Persky, for example, would not be up for retention election until 2022). With the financial and organizational support of powerful political interests, these petition requirements are a low bar to clear.

Recall elections have the potential to subject judges to possible removal based on the political winds of the moment. Remember the 2010 judicial election in which three members of the Iowa Supreme Court were removed based on their vote in the unanimous decision to strike down a prohibition on same sex marriage?

Many commentators agree that judicial elections of all kinds, whether direct election to office, retention election after appointment, or recall elections based on voter petition, should be entirely eliminated from our judicial system. Judges should instead be appointed and evaluated based on their overall competence, and not how they rule on highly publicized cases. Otherwise, only the most courageous of future judges will be willing to risk political fallout from ruling as they feel they must in any notorious case.

Whether you agree or disagree with Justice Bird’s view of capital punishment, the Iowa Supreme Court’s view of same-sex marriage, or the sentence handed down by Judge Persky in a high-profile criminal case, removal of judges with whom we disagree politically, whether initiated by the right or the left, can only lead to further politicization of the judicial branch of government.

Steve Koslovsky is an attorney who has been involved in and written about the judicial election and selection process. He is the author of Games Lawyers (and Judges) Play, which discusses judicial politics and other issues.

Suggested citation:Steve Koslovsky, Recall Elections Equal More Politicization of the Judiciary, JURIST &#8212 Professional Commentary, Feb. 9, 2018, http://jurist.org/forum/2018/02/steve-koslovsky-recall-elections-judiciary.php