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Judges and Judiciary

Jul. 13, 2010

Judicial Election Presents Political Dangers

The unseating of San Francisco County Superior Court Judge Richard Ulmer will have a far greater politicizing effect than many realize.

J. Anthony Kline

Justice (ret.),

Yale Law School

A potentially game-changing judicial election is not receiving the attention it deserves. Michael Nava, a research attorney for Supreme Court Justice Carlos Moreno and a Democrat, is challenging incumbent San Francisco County Superior Court Judge Richard Ulmer, a Republican who, like many judges, re-registered as an independent after his appointment. Neither won 50 percent of the primary vote, so the race will be decided at the November election.

The unseating of Judge Ulmer, widely considered an outstanding judge, would have a far greater politicizing effect than many realize.

If challenges to sitting judges without regard to their competence and character become acceptable in California, the consequences for our judiciary will be transformative. Exceptionally able but politically inexperienced lawyers will be less likely to seek judicial appointment. Lawyers who do seek appointment might feel it necessary to seek and obtain the political support of well-financed or influential groups that will want to know where they stand on issues courts decide. Governors will favor judicial candidates possessing the political skills and financial resources necessary to defend themselves. Some judges may think twice about ruling against politically influential parties, lawyers, or interest groups. Judges may establish campaign funds to discourage potential challengers, and lawyers who appear before such judges may feel compelled to contribute. All of these things are now commonplace in many states.

I acknowledge the constitutional right to challenge a sitting judge. But the challenge must be justified by the incumbent's unfitness or some other unusual consideration. In 1996 I endorsed Kevin McCarthy, an openly gay public defender, in his successful campaign against a newly appointed judge. I did so because there was in my view an overriding factor: the continuing refusal of successive governors to consider the judicial appointment of openly gay men and lesbians at that time. There is no such justification for the challenge to Judge Ulmer.

Mr. Nava, an openly gay Latino, justifies his candidacy on two grounds: That he will "bring diversity" to the court and Judge Ulmer is "a Schwarzenegger appointee and until recently a registered Republican."

The idea that his election will "bring diversity" to the San Francisco Superior Court is too far a reach. With the election of Linda Colfax in the primary, 25 of the court's 51 members will be women, 10 openly gay men or lesbians, nine Asian-Americans; three Latinos; and three African-Americans. The court must already be the most diverse in the United States.

Mr. Nava relies upon the fact that, although there are 10 gay men and lesbians on the Superior Court and 15 judges of color, no sitting judge is both a gay man and a person of color. Gay men of color undoubtedly have distinctive experiences and insights. However, as the member of Gov. Jerry Brown's administration responsible for his judicial appointments (which included more gay men, lesbians, people of color and women than had then been collectively appointed by all presidents and governors in the history of this nation), I know that the San Francisco Superior Court lacks enough seats for representatives of every permutation of the arguably discrete groups that suffer discrimination in our pluralistic society. Identity politics cannot reasonably be carried that far. Mr. Nava fails to explain any respect in which his values are underrepresented on the Superior Court and it should be obvious to any fair-minded person that there is no void in need of being filled. In any case, the benefit of any distinctive sensibility, Mr. Nava might bring to the court would be more than offset by the political consequences of his defeat of a respected judge who's values are no less worthy than his own.

Mr. Nava's campaign has little to say about Judge Ulmer other than that he was a Republican, which is apparently the basis for the implication that, unlike Mr. Nava, Judge Ulmer lacks "San Francisco values." It is hard to know what that is supposed to mean; but I know this about Richard Ulmer: very few lawyers in private practice have over a professional lifetime more selflessly devoted time to pro bono representation of oppressed individuals and groups. His achievements in behalf of prisoners, disabled persons, and battered women are monumental. For his thousands of hours of outstanding legal work in a lawsuit that resulted in a massive reform of the California Youth Authority, he was in 2006 named "California Lawyer of the Year" by California Lawyer magazine. These efforts and the values they reflect are the reasons many prominent San Francisco Democrats support Judge Ulmer, though he is not a Democrat.

The explanation for the challenge to Judge Ulmer is the belief a Republican appointee of Governor Schwarzenegger is beatable in San Francisco. This assumption is justified only if San Franciscans are prepared to transform a non-partisan position into a political plum without regard to the quality and independence of the judges sacrificed in the process. Mr. Nava originally declared an intention to enter the race for an open seat on the court. When others entered that contest he decided it would be easier to run against Judge Ulmer. Some who endorsed his bid for the open seat, including Justice Moreno, then withdrew their support because, as Justice Moreno observed, the attempt to defeat Judge Ulmer "threatens the independence of the judiciary."

Mr. Nava defended himself in an article in the Daily Journal entitled, "Straight Talk About Judicial Races." His central point is that, "It is disingenuous for judges to pretend that the appointment process by which they reached office is free of politics and partisanship, and yields only the most qualified judges, while judicial elections are somehow tainted by politics and partisanship and result in less qualified judges. What seems to be happening is that some judges are affronted by the fact that they have to run for office at all. To them I would say: Go read the constitution, this isn't politics, it's democracy." Mr. Nava says that "to criticize me, or anyone, for running against a sitting judge as threatening judicial independence ignores California's constitutional mandate and the choice it represents to give voters the ultimate say about the judiciary. If judges feel that standing for election threatens their independence, their recourse is to seek a constitutional amendment."

The simplistic notion that our Constitution was designed "to give voters the ultimate say about the judiciary" is always the slogan of those who challenge sitting judges, as it was for the organizations that called for the defeat of Justices Rose Bird, Cruz Reynoso and Joseph Grodin. The criticism of Mr. Nava is not for running against a sitting judge, but for advancing no legitimate reason for defeating the judge he chose to run against, and his indifference to the politicizing effect of such a challenge. The idea that a judicial election is no different from any other is, unfortunately, shared by many who should know better. In endorsing Mr. Nava, the S.F. Guardian readily acknowledges that "Ulmer's [sic] a smart and appealing person with an impressive legal resume, and we see no scandal that would mandate his removal from office," but nevertheless concludes that because "this is an elected office," it's perfectly acceptable for candidates who think they would better serve the public and the bench to run against an incumbent." Indeed, one wonders whether the Guardian endorses Mr. Nava because of the fervor with which he "makes the case that judicial appointments can be just as political as elections."

As all citizens should recognize, and as members of the legal profession should explain to those who do not, it is destructive of judicial institutions to maintain that judicial elections are no different from elections for partisan offices. Such elections introduce political considerations and money into the judicial process, diminish the role of law, and destabilize courts. Additionally, judges are far more defenseless than other elected officials. When it becomes "perfectly acceptable" to defeat an able judge, judges will be compelled to become political figures and fundraisers, which will destroy the impartiality of California courts. If, Texas, Mississippi, and other states in which judicial elections have become highly politicized are any indication, the poor and oppressed are far more likely to be the victims of politicized courts than powerful special interests. The judicial appointment process may not be free of politics, but it is certainly not "just as political" as elections for partisan offices. Appointees are subjected to rigorous peer review by the State Bar, and a Governor who appoints unqualified persons subjects himself to public criticism.

Judges are few in number. They cannot effectively participate in the political process, and their support for a colleague is often dismissed as just "circling the wagons." Given these realities, the legal community must mobilize and rise to the occasion. It understands the issues and what is at stake and possesses the resources to draw public attention to this race and use it as an opportunity to educate voters about the threat to judicial independence it poses. The integrity of San Francisco's principal trial court has been placed at risk. No lawyer committed to the high principles of the legal profession should abstain from the effort to defend it.


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