No Judging the Judges - May 11, 2016 - SF Weekly
SF Weekly

No Judging the Judges

You could make the argument that the single most important figure in the American criminal justice system — aside from the person accused of breaking the law — is the judge.

The judge sets the tone and the pace of the courtroom; in non-jury cases, the judge decides the verdict; the judge picks the punishment (within the confines of the law, which often gives a judge plenty of leeway).

And the citizens have a say in who is invested with such power, which generally lasts until the judge dies or chooses to retire: 99 percent of incumbent judges were reelected in California in 2014, and out of the 470 Superior Court judges gunning for reelection that year, 450 ran unopposed, according to Ballotpedia.

They are also the elected officials about whom the voters know the least. Unlike a constantly-in-the-news lawmaker or mayor, there is no easy way for the public to look up a sitting judge's record on the bench; doing so would require hours upon hours of digging through court records and transcripts (which are also not cheap to acquire).

And would-be judges are also barred from revealing too much about their leanings while on the campaign trail — it's the law.

“People ask me, 'What about Uber and Lyft? What are your thoughts about Airbnb?' ” says Paul Henderson, the chief criminal justice advisor for Mayor Ed Lee, and a former chief prosecutor for the district attorney, who is one of the three candidates running for an open seat on the bench in San Francisco.

Those questions — along with queries about stances on the death penalty, and anything else that might come before Henderson and his competitors, civil rights attorney and Police Commissioner Victor Hwang, and longtime litigator Sigrid Irias — must remain unanswered. If they did offer opinions, that could show prejudice, and ergo force them to recuse themselves from any related case. (Both Uber and Lyft have been in court recently, and a Market Street hotel accused of violating city law regulating Airbnb has a current pending case.)

As a result, “We can't give positions on the things people want to know about the most,” Henderson says.

This leaves the judicial candidates to talk up their legal records. Voters “do ask me what I stand for, and what I've done,” says Hwang, who gets to recount the top “exceptionally well-qualified” rating he received from the local Bar Association, his stint on the police commission, and his tenure as both a civil rights lawyer and prosecutor. Henderson gets to tout the stints he did as a temporary pro tem judge hearing civil cases in Alameda County and juvenile cases in an alternative justice program in San Francisco. (Judicial positions are nonpartisan, but party politics still come into play. A Democratic Party endorsement, for example, means your face printed on official party mailers.)

This also means the public really has no idea how a future judge will behave on the bench. Which, if not exactly transparent or democratic, is at least the near-total guesswork consistent with what the public knows about our current judges-for-life.