Judicial elections often go unnoticed compared to other elections. But this year in San Francisco, a group of deputy public defenders are running against sitting judges under the misleading slogan “Democrats for Judges.” The process of running against sitting judges defies judicial ethics in the first place, and the slogan further blurs the line between fake news and campaign rhetoric. The incumbent judges are, in fact, Democrats but happened to be appointed by Republican governors, a point the challenging attorneys seem to take issue with.
There are two ways to become a judge: Be appointed by the governor — the most common way — or be elected. Appointed judges have retention elections every six years. These retention elections are a way to get rid of unethical or bad judges; they should not be a way to turn the judiciary into a political game, in which those who raise the most money, pander to the most interest groups or get the most endorsements win. To be clear, the incumbent judges have no ethical concerns and have done their jobs diligently.
As someone who has worked with courts and judges across the state for more than a decade and who has also been active in politics, I find judicial elections to be one of the biggest dangers to our separate-but-equal third branch of government. An independent and impartial judiciary is essential to our democracy. As former Texas Gov. Sull Ross said, “The loss of public confidence in the judiciary is the greatest curse that can ever befall a nation.”
The U.S. is alone in electing its judges, which puts judges in a role of politician. Judges should be beholden to the law, not to campaign dollars and endorsers. This is especially true in San Francisco, where there are no fewer than 30 endorsing organizations that each have their own interests, politics and agendas, and where so many people rely on one of these endorsing slate cards to vote.
My opinion is not uneducated. Overwhelming evidence suggests it’s dangerous to start playing politics with the judiciary. A study published in the Northwestern Journal of Law & Social Policy showed how judicial elections jeopardize the autonomy of the courts, threaten individual liberties and erode public trust and confidence in the courts. That erosion is justified.
Other studies have shown that elected judges make harsher decisions and deviate from normal sentencing guidelines to hand down more severe criminal sentences just prior to their elections. The American Constitution Society found that justice is degraded by politics, and that money in politics undermines the judiciary’s fairness, impartiality and independence. The Brennan Center for Justice found that integrity of our state supreme courts, in particular, is increasingly under threat from a torrent of special interest money.
Finally, judicial elections are often so low on the public’s radar that, as one writer noted, they provide the illusion of popular control at the expense of actual accountability. A report by Politico noted, “Judicial campaign cash will upend justice in America by pressuring courts to answer to political influence, by turning judges into fundraisers, and by convincing disillusioned citizens that justice is for sale.” Even judges who benefit from elections have spoken out against judicial elections. When in a courtroom, do you want to wonder whether the opposing party has contributed to the judge’s campaign? Do we want judges to worry about public perceptions of how complex laws are applied when making decisions?
This is not the first time judicial elections have threatened the San Francisco judiciary. In 2010, an attorney challenged an incumbent judge using the exact same reasoning and campaign rhetoric as this year’s challengers are using. In that election, the sitting judge retained his seat. This year, voters should ensure that the sitting judges do the same. It was, and remains, short-sighted and dangerous to vote against a sitting judge based simply on who appointed that judge.
To be sure, the attorneys running for judge in San Francisco would likely make excellent judges, just as those currently serving are excellent judges. However, standing up for broader principles, ethics and democracy is more important than standing up for individuals, even if those individuals may have to find another way to advance their careers. When the time comes after their appointment or win for an open seat, I will defend their retention election from a challenger, too.
Dr. Amy Bacharach is a juvenile justice and human trafficking expert and former trustee of the San Francisco Community College Board. She does not know any of the judges or judicial candidates personally.