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Judges and Judiciary

Sep. 7, 2010

A Moral Choice

The moral of the story? Perhaps running against an exceptionally well-qualified judge demonstrates lack of judgment.

2nd Appellate District, Division 6

Arthur Gilbert

Presiding Justice, 2nd District Court of Appeal, Division 6

UC Berkeley School of Law, 1963

Arthur's previous columns are available on



Before I begin my column, I want to run something by you.

I have this idea for a novel. Please no groans. It's true that an alarming number of lawyers and judges are "writing" or have written a novel. Most are derivative and humdrum. But the one I am working on is an original. It has character development, an intricate plot, and ends with an uplifting moral awakening. So bear with me and let me pitch the story line to you. The novel I propose is about two gay Mexican-American lawyers, both of whom are registered Democrats and best friends. Already you can tell it's a grabber. One is a criminal defense lawyer. The other, the protagonist, is a research attorney for a highly respected Supreme Court jurist.

To ease the reader's task, I distinguish between the two lawyers by referring to one as a lawyer and the other as an attorney. The observant reader will note that in the plural my reference is "lawyers."

The lawyers have a symbiotic relationship. In his spare time, the research attorney writes novels about, of all things, a gay Mexican-American criminal defense lawyer. The criminal defense lawyer tells the research attorney about his exploits. This gives the research attorney a rich storehouse of story lines and adventures he uses in his novels. The research attorney, in turn, primes the criminal defense lawyer on developments in criminal law, which give the lawyer an edge when arguing points of law in criminal cases.

One day after work, while the two lawyers are having drinks at the Goldenboy Bar in San Francisco, discussing Democratic politics, the criminal defense lawyer expresses concern about the judge before whom he and one his clients is scheduled to appear on criminal charges. He says, "I sure as hell hope the judge is a Democrat."

The research attorney is taken back. He lectures the criminal defense lawyer that a judge's party affiliation has nothing to do with how that judge applies the law. "It may be true that a judge's background and life experiences may help shape that judge's judicial philosophy, but judges make a concerted effort to be nonpartisan, above politics. Party affiliation must have nothing to do with how judges decide cases."

Chastened by the research attorney's principled outburst, the criminal defense lawyer responds wistfully, "I admire your integrity. You ought to be a judge."

"Think so?" asks the research attorney.

"Damned right," says the criminal defense lawyer. "In fact, I can get you the Democratic party's endorsement."

"Really?" says the research attorney hopefully. For years he has harbored ambitions to be a judge. His friend's comment has fed into this desire and he decides to run against an extremely well-respected sitting judge. But he can find no basis for the slightest criticism of this outstanding judge. He and the criminal defense lawyer ponder how they can appeal to voters to vote for him, instead of the trial judge who was rated highly qualified and garnered support from most judges, attorneys, and, yes, even Democratic office holders.

The criminal defense lawyer says, "I've got it. Appeal to the voters to vote for you because your opponent is not a gay Mexican-American Democrat." They "high-five" one another and buy one another a drink.

Months go by and the campaign is in full gear. But then one day in the middle of campaigning, the research attorney realizes that his campaign reflects the opposite of everything he had told his lawyer friend before he even considered running for judicial office. He thinks it unseemly to run a partisan political campaign against a distinguished, well-respected judge for a judicial office that, by its very nature, must be above partisan politics. He sees the irony in running against a judge who is well respected because he decides cases based on the law, not politics.

The research attorney expresses his doubts to his lawyer friend who asks him a simple question. "Is your running for judicial office as a gay Mexican-American Democrat legal?" How else could he answer but to say, "Yes, it is legal. I have a right to run."

"So quit worrying."

But worry the research attorney does. He does not have even the endorsement of the Supreme Court justice for whom he works. He feels that if he goes ahead with the election, win or lose, something would die in him. It would be a big, not a little, death. Being a literary type, he thinks of Faust. He decides he will keep his soul. He chooses principle over ambition. He drops out of the race and endorses the judge against whom he is running. His lawyer friend is disappointed, but admires his friend's integrity. He understands the power of the hidden law.

So there is the outline of my novel. What do you think? What? Unrealistic? It would never happen in real life? Well, this is fiction, a fairy tale.

Heavens! Look at all the time that went by. Better get to my column. The column is about two people I do not know.

Michael Nava is running for judge of the San Francisco Superior Court. I do not know Nava, but I do know a few things about him. He is a research attorney for Supreme Court Justice Carlos Moreno, who is a friend of mine and an exceptional jurist for whom I have enormous respect. In the past Nava served as a research attorney for another highly talented jurist, now retired, also a dear friend, Presiding Justice Arleigh Woods. I also know that Nava has written several crime novels. But these random facts about Nava are beside the point. To repeat, I do not know Michael Nava, but I do know that he is not qualified to be a judge.

Judge Richard Ulmer is a judge who sits on the San Francisco Superior Court. I do not know Ulmer. But I know many things about him. He is the judge who Michael Nava is challenging in the upcoming judicial election. When Judge Ulmer practiced law with Latham & Watkins, he devoted countless hours of pro bono legal work on behalf of the poor and disadvantaged. He fought for the rights of abused and battered women. He led a team of lawyers and investigators uncovering abuses in the juvenile court system. Juveniles in California Youth Authority custody were overly medicated with psychotropic drugs, and forced to endure substandard nutrition and health care. Gay youths were subject to rape and sexual assault by sexual predators. Judge Ulmer was instrumental in obtaining a consent decree to which the state agreed to correct the abuses. For his heroic work, he was awarded the prestigious "California Lawyer of the Year" in 2006.

Judge Ulmer is an exceptionally good judge who brings sensitivity, insight, compassion and legal scholarship to his decisions. He is supported by the entire San Francisco Superior Court, numerous Court of Appeal justices, past Supreme Court Justices Cruz Reynoso and Joseph Grodin, and leading political and community leaders across the spectrum. These include Senator Dianne Feinstein, Mayor Gavin Newsom, California Party Democratic Chairman John Burton, Sheriff Michael Hennessey, prosecutors, defense attorneys, San Francisco Police Officers Association, Log Cabin Republicans organization, and many more available on Judge Ulmer's Web site ( Through a vigorous vetting process, Judge Ulmer has received a "well qualified" rating from the San Francisco Bar Association. Nava has received a barely passing grade, "qualified."

I appreciate Michael Nava pursuing his dream to be a Superior Court judge, but at what price? He is running against a judge who has protected gay youth from appalling abuses. Nava does not, nor can he, cite any legitimate criticism of Judge Ulmer. Nava's reason that he should be elected over Judge Ulmer is that he (Nava) is a gay Mexican-American Democrat and Judge Ulmer is not. Nava therefore claims that he possesses a unique combination of traits that will bring even more diversity to the San Francisco Superior Court, which is probably the most diverse court in the United States.

Nava is multi talented and a fine writer. He has written seven novels and earned literary prizes. If I knew him, I bet I would like him, yet I am convinced he is not qualified to be a judge. The very fact Nava is running against an exceptionally well-qualified judge demonstrates his lack of judgment and character in this one unfortunate choice he has made. I would not fault him if he were running against a judge whose deficiencies warranted a challenger. I would not fault him if he were running for an open seat. But ambition clouded his judgment.

Judge Ulmer is an Independent. I am a Democrat. So is Michael Nava. Nava would like his political affiliation to have something to do with this election. It should have nothing to do with the election. As my colleague Justice J. Anthony Kline said: "[I]t 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."

I urge everyone throughout the state to support Judge Richard Ulmer to retain his seat on the San Francisco Superior Court.

And I think I will send the summary of my purposed novel to Michael Nava. Maybe he will use it in his next piece of fiction. But better if he uses it in his own life.


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