My first five minutes in court were a revelation. Law school prepared me to write motions, make oral arguments and meet with clients. But I was startled when the uniformed bailiff bellowed “All rise!” and rows of working people, family members from all walks of life and suited-and-booted attorneys all scrambled to their feet. I realized I had underestimated the concentrated power of one person in this courtroom constellation whose entrance required a public show of fealty: the judge.
The judge decides who is telling the truth in a divorce hearing. The judge decides whether children should be taken away by Child Protective Services. If you are accused of a crime, the judge decides whether you stay in jail (despite being presumed innocent). When you are convicted of a crime, the judge decides the sentence. The discretion the judge has is so profound that he or she can often choose between sending someone to state prison for 20 years or sending them to sleep in a bed at a supervised treatment program where they live, work and gain recovery in their community.
The governor of California has something in common with the king of Saudi Arabia and the old presidents of apartheid South Africa: He gets to select these powerful arbiters. Upon the governor’s order, the black nylon zip-up (“the robe”) is presented to the lucky lawyer whose new name is “Your Honor.” The chosen lawyer gets a new chair to sit high above everyone else in court. Courtroom bailiffs snuff out disrespectful behavior, such as reading in court. (Yes, this is actually banned; the public is expected to look and listen with admiration to every glowing word from “His Honor,” even when the judge is sending their family member to prison.)
There is a democratic wrinkle in this otherwise autocratic system: judicial elections. Every six years in California, there is a vote. People can run for election, as with any other political office, but most of these elections are uncontested, and few voters could name a single candidate.
In 2018 San Francisco, there has been a sea change. The decision of four public defenders — Niki Solis, Phoenix Streets, Kwixuan Maloof and Maria Evangelista — to run for judge has sent the judicial and political establishment scrambling. Judges are rarely addressed and, indeed, questioned for decisions they make and the manner in which they treat litigants and parties. Lifting up the rocks of the legal system and looking underneath is a healthy process, subjecting the system to well-deserved scrutiny.
All four challengers have been practicing attorneys for more than a decade. Each of them has gotten bogus charges dismissed against innocent people, as well as crafted smart solutions for clients with mental health and substance abuse issues. They understand what works and what doesn’t. They understand how to listen to everyone, no matter where they are from.
On the other hand, the four sitting judges were all appointed by Republican governors. Their well-funded electoral campaign seems to have one primary argument: that simply by running for office and pointing out who appointed these judges, the four new candidates are “politicizing” the judiciary. The sitting judges’ campaign thus mimics the sentiment of Neil Gorsuch, President Donald Trump’s U.S. Supreme Court nominee: “There’s no such thing as a Republican judge or a Democratic judge — we just have judges in this country.”
No one in power actually believes this, but it is an effective talking point because it appeals to our desire to get politics out of some — any — spheres of our lives.
An exhaustive 2006 study by Harvard Law School professor Cass Sunstein proved exactly the opposite: Federal judges appointed by Republicans vote very differently from federal judges appointed by Democrats. Politicians from both parties tend to appoint judges that subscribe to their political views, and their judicial rulings often follow in line. Republican senators killed President Barack Obama’s Supreme Court nomination of Merrick Garland for a reason: They wanted one of their own in that position of power.
Republican politicians pursue partisan politics doggedly, but when Democrats are in power take an “apolitical” tack, claiming that Democrats are being overly partisan. Similarly, the sitting judges’ campaign in San Francisco asks voters to ignore, on the ground that it is irrelevant, the fact that they were all appointed by Republican governors. To do so would require the patience — and habits — of an ostrich.
Along with great power, judges bear the great responsibility of imposing justice equally. Recent studies have demonstrated that when tested, judges show implicit biases just like everyone else and that a judge’s ethnic background impacts his or her perception of employment harassment cases. San Francisco has one of the worst racial disparities of any similarly sized American city: More than 50 percent of jail inmates are African-American men in a city that is comprised of about 2 percent African-American men. Despite the importance of diverse judges, there are currently just five African-American judges and five Latino judges in The City. The election of the four public defender candidates would single-handedly contribute to a truly diverse judiciary of which all San Franciscans can be proud.
The city of Philadelphia has important lessons for all of our urban centers. Philly, like San Francisco and many other cities, has been long-plagued with police scandals and court problems. In election after election, every Philadelphia district attorney candidate was a former assistant district attorney. Year after year, nothing got better for citizens of Philadelphia.
Then, Larry Krasner, a former public defender and civil rights attorney, was shockingly elected district attorney last year. Almost immediately, he instituted policies that focused on treatment-based programs, forced prosecutors to consider the cost to taxpayers of incarceration and expunged people’s records for old arrests that had not resulted in a conviction. With the election of a candidate from outside the old boys’ network, popular reforms were implemented that seemed impossible under the existing institutional albatross.
The San Francisco trial courts need a similar breath of fresh air. June 5 is a good day to start.
Peter Santina is an attorney in the San Francisco Bay Area and former deputy public defender.