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Not my vote

By Arthur Gilbert Ben Armistead | Mar. 5, 2018

Law Practice,
Judges and Judiciary,
State Bar & Bar Associations

Mar. 5, 2018

Not my vote

For now, unless I have reason not to do so, all incumbent judges have my vote.


Bank robber Willie Sutton was asked, "Why do you rob banks?" His reputed answer was, "Because that's where the money is." Ask a lawyer why he or she is running against a sitting judge. The lawyer will probably answer, "Because I have a right to run." Now inject a truth serum and ask the question again. The answer will probably be, "Because I want to be a judge." Of course the second answer is right -- "Because I want to be a judge" (pardon the play on words). But getting back to the first answer, a right to run is far different than a right to our vote.

There are numerous lawyers throughout the state who apparently want, or should I say, yearn, to be judges. Some are running against newly appointed judges who have been on the bench a mere number of weeks or months. Some are running against sitting judges because those targeted judges were appointed by the governor of a particular political party. Never mind about their performance as judges. Not one of these lawyers will have my vote.

Pause for a brief acknowledgement: I am a judicial officer. There was a time in the distant past when I was a trial court judge. (Anticipated pedestrian argument from a few irate readers: I have a vested interest in the judiciary and my views are biased.) Give me a break! Oh dear, I despise those words -- will add to my growing list of detestable phrases. Please disregard, or, as a judge would say, "strike it." Where were we? Oh, yes, my bias. I ask you fair-minded readers to judge the quality of my argument and not to speculate about my motivation.

So let's take a look at judges who have been appointed by the governor. They suffer... I mean, they go through an exhaustive vetting process. The judicial applicant has to complete an application that takes an eternity to complete in which just about everything about the applicant except maybe her blood type is the subject of inquiry.

There is a rumor that the governor has formed "secret" committees that thoroughly vet candidates to determine whether or not they will be sent to the Judicial Nominees Evaluation committee. Thank goodness we can shorten this clumsy title to JNE. I used to know a Jenny, but that was long ago. Never mind. I called Ms. Helen Zukin, Esq., who once was chairperson of the JNE commission and, up to this year, helps train new members, all of whom are selected from various branches of government and from the public. Disclosure: Ms. Zukin was chairperson of the JNE committee in 1999 when I was evaluated for the position of presiding justice. I made it. Whew!

Ms. Zukin pointed out that questionnaires are sent to members of the legal community with inquiries concerning a nominee's qualifications, ranging from scholarship, work habits, demeanor and bias. The commission members rate the candidate as Extremely Well Qualified, Well Qualified, Qualified, and Not Qualified. A governor rarely has appointed a candidate rated Not Qualified. Commission members work diligently conducting extensive examinations of the candidates, including in-depth interviews of the candidates.

This is not the case with those lawyers running against sitting judges. They may be subject to evaluations by local bar associations, but there is no uniform system throughout the state.

My concern does not focus on those running for an "open seat." Such a seat is up for grabs. And a sitting judge may be fair game for a challenge under appropriate circumstances. Years ago, California had a municipal court. One particular judge on that court seldom showed up for work. He would set hearings and the lawyers and courtroom staff would sit around all day waiting for him to appear. On occasion, he would come in late or call in and have his clerk continue the case to the next day when other matters already had been calendared. An investigation revealed that the judge was taking time off to coach his son's swimming team. Many of my colleagues and I strongly supported his challenger who won the election and proved to be a highly respected superior court judge.

Another example from over three decades ago involved an attorney with just over five years experience who ran against a first-rate municipal court judge. The judge's last name reflected his Chinese heritage. His challenger had a Jewish surname. No doubt the challenger hoped that voters in the Jewish community would cast their vote for him because of his name. All bar associations rated the Chinese judge Extremely Well Qualified and his inexperienced challenger Not Qualified. Jewish newspapers and Jewish legislators all endorsed the Chinese judge and his challenger was roundly defeated.

Unfortunately, most voters have no idea who to vote for in judicial elections. A merit selection system in which voters simply vote "yes" or "no" in a retention election would be preferable to our current system. Retired Supreme Court Justice Sandra Day O'Connor has argued for such a system to replace contested elections. Judges would still appear on the ballot, but would be subject to a judicial performance evaluation by an impartial nonpartisan commission that would include public members. In an article published in The New York Times 18 years ago, Justice O'Connor praised the many states that have in place some form of "merit selection" system. It gives the public sufficient information to vote intelligently either for or against judges and ensures judicial independence.

A similar system for trial court judges in California makes sense. This would ensure that capable judges are not arbitrarily targeted in a judicial election because of an unusual name, or simply because someone wishes to be a judge.

But because we are stuck with the current system for now, I suggest that voters profit from the careful examination conducted by most bar associations in rating candidates for judicial office. I urge voters to look askance at challengers to qualified sitting judges. Our judiciary does not prosper when lawyers, tired of practice, seek to turn out of office well qualified judges who have proved their worth and ability to fairly and dispassionately decide cases.

Government Code Section 68110 provides: "Every judge of a court of this state shall, in open court during the presentation of causes before him or her, wear a judicial robe, which the judge shall furnish at his or her own expense. The Judicial Council shall, by rule, prescribe the style of such robes."

Other than the requirement that judges have to pay for their own robes, I support this statute. Don't have to buy as many suits to wear to work. But it has a purpose. Two weeks ago I spoke to students at a local junior high school. I brought my robe and even put it on over my jeans. I asked the kids why judges wear robes. The answers included: "It shows everyone you are the person deciding the case." "It gets respect." Smart kids. The robes are an outward display of the judiciary's neutrality. It is the branch of government that is above partisan politics. This most of us recognize despite differing "judicial" philosophies, the discussion of which often dominates the appointment process.

I submit that a lawyer's right to run against a judge is not the equivalent of an entitlement to do so. "Restraint," we are told, is an admirable judicial trait. I suggest that voters, and challengers to competent judges, keep this in mind.

I will have more to say about judicial elections in future columns. But for now, unless I have reason not to do so, all incumbent judges have my vote. In my opinion, lawyers looking for a new job who challenge capable judges do not deserve my vote. Their motivation rates them Not Qualified.


Ben Armistead

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