The Right to Elect Judges Loses Meaning
The right to elect judges loses meaning without the right to be informed of what they do.
by John Trasviña
Last week’s solar eclipse is an apt metaphor for the obscurity in which our local judges appear to the public and remain in power. The protective cloak provided by the powers that be do not place judicial elections in total darkness but, combined with restrictive access rules, make it difficult for the average San Franciscan to know what goes on at the Hall of Justice and the courthouse. As a result, democratic accountability suffers and our right to vote for judges, enshrined in the California Constitution since 1840s statehood, is weakened.
The admonition of “Democracy Dies in Darkness” that is now the watchword of The Washington Post is easily understood when it comes to the federal judiciary. When the U.S. Supreme Court rules on reproductive freedom, guns, immigration, or civil rights, both sides march and rally to protest or support their decisions. The American people have a front-row seat at Senate confirmation hearings so everyone can learn about the personal backgrounds and legal leanings of the nominees and call their senators with a recommendation on how to vote. Yet, when San Franciscans sought even a glimmer of openness about our own judges, four pillars of power — the Bar Association, the newspapers, elected officials, and the judges themselves — stood in the way.
Last fall, I volunteered to help Stop Crime SF, a local community group promoting policies and actions to stop crime in San Francisco, evaluate our local Superior Court judges. In my career at the U.S. Senate Judiciary Committee and Department of Justice, minority bar associations and civil rights advocacy groups, I have spent countless hours and days researching, preparing, supporting and opposing judicial nominees and know there are effective and ineffective ways to do so. Stop Crime SF’s first step was to go to each judge whose term was ending and ask him or her what criteria voters should use to evaluate them. We also asked for the nonconfidential parts of the questionnaire the judges provided the governor when they were first appointed to get an idea of what they had felt would be important to him to consider to make that appointment. Governors appoint judges because it is impractical to have an election every time there is a vacancy. After that, the power to decide whether a judge should have a subsequent term belongs to the voters.
San Franciscans need to know who their judges are and what role they play in protecting basic rights and community safety.
The local judges got together and sent back a joint letter rebuffing our request for this information. This was quickly followed up by two Chronicle op-eds by a law school dean and the incoming president of the Bar Association and a City Hall press conference held by Board of Supervisors President Aaron Peskin flanked by sitting and retired judges decrying this “attack” on the independence of the judiciary. Supervisor Peskin went one step beyond by introducing a resolution questioning local judicial elections and attempting to pass it without a committee hearing by using a legislative rule designed for honorary board proclamations. When his colleagues objected, he seemingly abandoned it. In light of the speed and ferocity of the insiders’ response to our attempt simply to ask questions, it is no surprise that challengers to two judicial incumbents ultimately fell short at the March election.
Here’s what’s needed going forward. Whether there is an upcoming election or not, San Franciscans need to know who their judges are and what role they play in protecting basic rights and community safety. Right now, it would be a surprise if 10 percent of the nonattorney population could name more than one San Francisco Superior Court judge. Recent additions to the Superior Court website demonstrate an effort to conduct public outreach. It’s a good new look but 10 of the 12 new items on the website feature one judge. All must be engaged in this process.
It is critically important for sitting or retired local judges, prosecutors, defense attorneys, law enforcement officials, and our state legislators to come together all in one room to explain to neighborhood groups what goes on in the criminal justice process, who makes what decisions and why. Right now, the average voter gets the runaround amidst the finger-pointing among these representatives as to who are responsible for the outcomes of whether arrests are made, charges filed, defendants released, cases diverted, or sentences served. Researchers and advocates tell me that access to local court records in San Francisco is more difficult and time consuming than in other Bay Area counties who are following the same state privacy laws. Streamlining access to information and still respecting confidentiality requirements will improve credibility and accountability. Finally, the Bar Association should bring together key stakeholders, including community groups, to bring back a version of the judicial report card it produced in the 1990s and share it publicly. It is beyond the capacity of most groups to take on but, without groups coming together, gaining credibility and acceptance of the evaluations will be a challenge.
Together, these steps will increase visibility and understanding of what is going on in our judicial system. Judges will still have wide latitude to afford justice to those who come before them. The point is not to have “tougher” judges but more respected judges who consider the community’s values including, but not only, safety, mercy, rehabilitation, and accountability. That is why under the California Constitution and in a democracy, the judges are elected by the people. But the people can’t do the job responsibly without being informed.
Courtesy of “The Voice of San Francisco” which originally published this article.
