Part 2, the Martian perspective on the 2018 judges’ elections in San Francisco: can an electable judiciary be seen as independent when appellate judges also choose a side in elections?

2. NYTimes 25 May 2008 (2) on tradition of US tradition of voting for judges cotin.org
Above and below: headline and extracts from a report in The New York Times, 25 May 2008, about the inseparability of politics and the judiciary in America

Excerpt NY Times -- 25 may 2008 ROW judges independent SC cotin.org

3. NY Times excerpt French judges know what they are doing SC cotin.org

Part 1 can be read here

Martian spectators at the contest for four San Francisco judges’ seats in state election campaigning are surely rubbing their antennae in disbelief.

Why aren’t earthlings dissecting and debating furious objections to the contest by some of California’s most powerful judges?

J. Anthony Kline, for example, is a senior presiding justice of the state’s Court of Appeal, where litigants must go to seek corrections of decisions by lower (‘trial’ or ‘superior’) courts. In his scathing opinion piece in The San Francisco Chronicle about four public defender-lawyers challenging four incumbent judges for their seats on the city’s bench, he wrote:

The effort to defeat four of the most able, compassionate, and experienced judges in Northern California simply because they were appointed by a Republican governor in an overwhelmingly Democratic county is an unmitigated act of political opportunism. […] [W]hatever the intentions of the challengers may be, the effect of their effort threatens to undermine the independence and integrity of the California judiciary.

Of course Justice Kline was exercising his right to free speech. But for anyone brought up with the idea of a judge as all but synonymous with strict and unbending impartiality, it was a shock to read not just his fiercely partisan argument in favour of four incumbent judges, but its near-perfect echo in a legal newspaper by an even higher-ranking member of the judiciary, Justice Mariano-Florentino Cuéllar of the California Supreme Court.

If appellate court justices — by effectively backing particular lower-court judges whose work they are supposed to vet for fairness and accuracy — create emotional bonds with them, how can they be objective when they have to scrutinise their reasoning and rulings?

If they feel so strongly compelled to protect these trial judges from the humiliation of running for office, in contests fully sanctioned by California’s constitution, would these appellate judges not feel equally compelled to spare them from the embarrassment of having their trial decisions overturned?

And what happens to any challenger lucky enough to win enough votes to defeat a rival backed by higher-court justices? Once such a challenger becomes a trial judge, can this turn out to be very bad luck — because the winner’s work is liable to be reviewed more harshly by appellate justices angry about that victory?

With nothing to stop top justices from praising particular trial judges, should they have to supply evidence justifying their praise — and address hard proof to the contrary, that makes such praise incomprehensible?

Consider, for example, Judge Cynthia Ming-Mei Lee, who presided over the case anatomised on this site. She just happens to be one of the San Francisco judges forced to defend their seats in preparation for next week’s election.

When Justice Kline referred to her as one of the ‘most able, compassionate, and experienced judges in Northern California’, had he forgotten that she herself has testified to the strenuous difficulty for her, that followed from her complete lack of experience as a civil court trial judge — a reassignment after four decades of specialising exclusively in criminal justice? A change of assignment she chose, because she felt like a change? Even lawyers — more lightly burdened with responsibilities than judges are — rarely straddle the separation between civil and criminal law, which each have their own courts and judiciary; or switch from one to the other.

It is unlikely that Justice Kline knows that in the appellate case on which this site focuses, to which Judge Ming-Mei Lee appointed herself, the court of appeal deliberately blocked official evidence of this judge’s lack of knowhow in the relevant branches of law — contained in an outline of her career published by her own court. The order dated 20 April 2016 shutting this document out of the review of her handling of the case stated:

The appellate record will not be augmented […] with a September 29, 2010 press release regarding a San Francisco Superior Court judge.

It would also be surprising for Justice Kline to have described her as compassionate, had he read many reviews of her performance. Aside from the unmediated contributions from lawyers and litigants on her page of the online reviewing forum, The Robing Room, there are the comments about her by attorneys in the clip below — mostly about her record in criminal law courts — gathered and scrupulously balanced by the authors of California Judge Reviews, in which the judge was given a chance to defend herself:

California Judge Reviews Judge entry on Cynthia Ming Mei Lee supplied by law ibrary in 2016
Extract from the entry on Cynthia Ming-Mei Lee, mostly as a criminal law judge, in California Judge Reviews, Elizabeth Smith and Mark Thompson, 2016

Our Martian onlookers would have to conclude that neutrality is a scarce commodity in this judicial election. Commentators are as likely to be partisan as candidates — and are breaking no laws when they are. Incumbency is no guarantee of either expertise or knowledge in contenders.

4. Charles Koch excerpt no tradition of selecting independent judges SC cotin.org
Highlight from a 2004 paper by the late Charles H. Koch Jr.  — a respected legal scholar and section-leader of the American Bar Association in the Indiana Journal of Global Legal Studies, Vol. 11: Iss. 1, Article 6

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