CA judges protect their independence and the rule of law

from Robert GreeneCalMatters

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When the rule of law is under attack, judges are among its natural defenders. But the very nature of their positions prevents them from doing or even saying much outside the courtroom. They must avoid any kind of partiality or partiality.

That’s why it was so remarkable nine years ago when California Chief Justice Tani Cantil-Sacaouye stuck her neck out by calling Trump administration officials to stop making immigration arrests in courthouses. The court is a place where witnesses, litigants, defendants and anyone else should be encouraged to come without fear, in pursuit of justice, Cantil-Sakaue writes. Usage court as “bait” for arrests undermines that goal, she said.

Her letter resonates today as the second Trump administration brings together escalated immigration enforcement with a broad attack on the judicial system, especially on judges who rule that any individual patrol, arrest, imprisonment or deportation violates due process and other constitutional principles.

Attacks on judges

Trump has called the judges who rule against him “wicked.” Attorney General Pam Bondi named three to be removed because she said they could not be impartial (meaning they ruled against the president). White House Aide Stephen Miller branded judges who block Trump’s actions as “communists”. Elon Muskwho briefly had a powerful, if unofficial, role in the Trump administration, called for a “wave of impeachment” against judges who have delayed his attempt at mass firings of federal workers.

The verbal abuse was so fierce and the threats of impeachment so frequent that the Chief Justice of the U.S. John Roberts told them to stop. He reminded the president that the proper response to an adverse decision is an appeal, not impeachment. But the administration paid no more attention to Roberts than it did to Cantil-Sakawe in 2017.

In the face of such attacks, can judges offer anything more toothsome than a strongly worded letter? No, given the limitations imposed by the code of conduct for judges. That leaves it to others to defend the third branch of government and the rule of law.

As it happens, some retired justices (including Cantil-Sacaue, who now heads the Public Policy Institute of California after her term ends in 2022) have stepped up.

Before examining whether their efforts are great, let us consider whether they are necessary. Federal judges have lifetime appointments, and cross-indictments against them can easily be dismissed as so much political chatter that predates the Trump era by two centuries. Impeachment and removal of federal judges are rare. President of the Chamber Mike Johnson’s recent statement support for the actual impeachment of US District Court Judge James Boasberg over his decision in an immigration case will likely come to nothing. Congressman Andy Ogles’ childish “wanted” poster depicting the judges he wants impeached was a near-successful attention-grabbing effort that won’t drive any judges out.

The problem is that we live in an age where political chatter can quickly turn to intimidation and violence and can threaten America’s core institutions of freedom. Recall that Trump’s fact-free insistence that the 2020 election was stolen from him led thousands of his supporters to storm the Capitol on January 6, 2021 in an attempt to prevent the certification of his successor. It was chatter with a dangerous bite, and it immediately, if temporarily, tarnished much of Americans’ hard-earned confidence in the integrity of elections.

Actual or implied threats

There is little reason to believe that a president who has shown himself so willing to undermine free and fair elections would worry about weakening an ostensibly equal branch of government that, by design, has little power to defend itself.

So it is not lost on judges that threats against them can be picked up and action taken. The most cited example stems from the assassination attempt of a California attorney against U.S. District Judge Esther Salas of New Jersey, which led to the murder of her son. The 2020 killing was apparently unrelated to national politics. But a number of judges have since ruled against the Trump administration pizzas have been sent in the name of the son. The claim is clear: We know how you’ve been driving and we know where you live.

It is important to note that the judges are targeted by multiple political circles, not just the White House and not just the MAGA Republicans. When Gov. Gavin Newsom was unhappy with a federal court ruling on homeless encampments in 2023, he said he thought publication of the judge’s telephone number on a billboard. “Judges must be held accountable” Newsom said on social media.

Accountable how exactly? Decisions not supported by law are overturned on appeal. Judicial violations may be sanctioned by supervisory authorities. Even Trump administration officials haven’t directly threatened to dox judges they don’t like, sinister pizza deliveries notwithstanding.

Unlike federal judges, California state judges are elected and therefore accountable to the voters. But this system carries its own dangers for the integrity of the judicial system and the rule of law. If voters are able to oust a judge simply because they don’t like a decision (as Trump would like to do in the federal system), then judges can shape their decisions to win public support rather than reflect their best understanding of the law, the facts of the case, and the interests of justice.

does it happen Two NYU professors examined criminal convictions from six California counties following the campaign to recall Santa Clara Superior Court Judge Aaron Persky, following his controversial 2016 light sentence of a Stanford student convicted of sexually assaulting an unconscious woman. The professors found an “instant” 30% increase in the length of criminal sentences handed down by the 158 judges whose cases were studied. Evidence suggests that elected judges, despite their insistence on upholding only the law, may change their decisions when under political pressure.

Nor is it uncommon for elected prosecutors or sheriffs to deflect blame for crimes committed before them by pointing fingers at judges whose decisions conform to all laws. Riverside County Sheriff Chad Bianco, who is currently running for governor, led the way campaign to pressure a judge in his county to resign (she didn’t) after a defendant she ordered released, in accordance with the law, killed a deputy sheriff.

Blaming the judges

Retired Santa Clara Superior Court Judge LaDoris Cordell has resigned from San Francisco District Attorney Brooke Jenkins’ Innocence Commission in protest of Jenkins’ harsh criticism of judges. Jenkins previously blamed his predecessor for San Francisco’s public safety problems, but began blaming judges when he succeeded him.

“The place where a prosecutor can disagree with a judge’s decision is in the courtroom, not on social media and not in the streets pandering to voters,” Cordell wrote in his resignation letter.

As a retired judge, Cordell can speak out against attacks on an independent judiciary in a way that sitting judges cannot.

Other retired judges became agitated, organized and fought back.

On September 17 — Constitution Day, a fitting day to defend the rule of law — 104 retired California judges and justices (including Cordell) signed a “Declaration of Judicial Independence,” in response to “unfair public criticism that threatens a fair and impartial judicial system.” The declaration was written and the campaign organized by retired senior judges Brett Aldridge of Tulare CountyGeorge Eskin of Santa Barbara County, Suzanne Ramos Bolanos of San Francisco and Judge John Pacheco of San Bernardino County.

That same day, nearly 50 retired federal judges who are part of the Article III Coalition have authored their own letter arguing that threats to “intimidate, harass and pressure judges and influence their opinions” are an attack on the Constitution.

Defense of a revolution

And on Dec. 15, Bill of Rights Day (who knew there was a Bill of Rights Day?), 45 retired chief justices, including Cantil-Sacawe and her predecessor, Ronald George, signed on a letter pledging to protect a strong and independent judiciary.

None of the documents call out Trump, or Newsom, or anyone else for their attacks on judges, or suggest any possible consequences of continued attacks. So, just a few more strongly worded letters, just like Cantil-Sakaue’s in 2017? Big deal.

But hold that thought.

We are six months away from the 250th anniversary of an extremely powerfully worded letter sent to all of humanity laying out a list of grievances against tyranny.

The signing of the Declaration of Independence was preceded by years of debate, street protests, committees of correspondence, and other actions among people of diametrically different political viewpoints. It took a long time before the American colonists could join and sign a register of grievances that included the king making the judges “subject only to his will” and obstructing the administration of justice.

There was also something about putting troops on the street without the consent of the legislatures.

It is important and timely that retired judges mobilize to defend the ideals of the revolution. It’s good that they spoke up. Maybe now is the time for them to speak louder and more often.

This article was originally published on CalMatters and is republished under Creative Commons Attribution-NonCommercial-No Derivatives license.