Wednesday, June 13, 2018

Dershowitz takes on the recall to Judge Aaron Persky

You remember Persky.  He is the judge who gave the 6 month sentence to the Stanford student convicted of rape.  The sentence seemed too low to most observers, and the judge was just recalled.  Dersh persuasively argues that the recall is a dangerous attack on judicial independence.  Even if you disagree with the sentence, judges need to be free to judge.  If not, they will just do what the majority says:
Yet, demanding a recall of a judge because of disagreement with a particular sentence has institutional implications that transcend a single case. The campaign to recall Judge Persky was led by a feminist law professor from Stanford named Michele Dauber, who argued that Judge Persky was too lenient in his sentence and that she wanted to send a message to other elected judges.

Opponents of the recall included prosecutors and judges, who argued, “It certainly appears the goal is to teach judges, all judges, some lessons: If you want to keep your job as a judge, keep an eye on media reports of public sentiment when you are exercising your sworn duty to sentence a defendant in light of the law and the facts.”

Professor Dauber succeeded in recalling Judge Persky but, in doing so, she and those who voted for the recall inflicted a deep wound on judicial independence. Today, they recalled a judge who made a ruling against their agenda. Tomorrow, this recall will energize extremists from the right to recall judges who make rulings supporting the left-wing agenda.

California has already experienced a successful right-wing effort to remove liberal judges. Back in 1986, Chief Justice Rose Bird and Associate Justice Cruz Reynoso were voted out of office because of their opposition to the death penalty and their support of other liberal agenda issues. We are likely to see more recalls and contested judicial elections now, organized by extremists on both sides.

The sad reality is that the last thing extremists want is judicial independence. What they want is judges who will do their bidding, who will support their agenda and who will vote their side. In an age when nearly everybody picks a side and supports it without regard to neutral principles of justice or civil liberties, the danger to judicial independence comes equally from the left and the right.

The difference is that the left needs judicial independence more than does the right. This is because independent judges are supposed to defend the rights of the disenfranchised, the weak, the discriminated against and those who cannot prevail in our majoritarian political system. No judge has ever been removed from office for being too tough on crime, for imposing excessive sentences, or for siding with prosecutors. The recall is a right-wing tool that now has been sharpened by the hard left.

So the decision to recall Judge Persky may benefit the extreme left in the short run, but it hurts liberals and progressives in the long run. But extremists always demand immediate gratification and rarely look to the long-term implications of the damage they are doing. The ultimate losers will be African Americans, Hispanic Americans, Native Americans and other minorities who too often are treated unfairly by our legal system.


Anonymous said...

F dersh. I like being able to recall our judges via election every 6 years. If they are a holes, they get voted out.

Anonymous said...

He's not wrong, but he hurts his own persuasiveness by throwing jabs at the people behind the recall effort. You don't convince anyone who disagrees with you by attacking them while trying to make your argument. I'm sure the folks in favor of the recall don't think of themselves as extremists, nor do I expect that Michele Daubner introduces herself as a "feminist law professor from Standfor" (his contempt for "feminism" jumps off of the page in the context of this piece).

True to Dershowitz's form, his writing sends the message that he's more interested in being right than in persuading people to believe in the same things that he believes - in effect, he's just preaching to his own choir.

Anonymous said...

So long as the ability to recall a judge exists, there will always be concerns about whether any particular recall was done for the right reasons, and about the implications thereof (as in this case). For that reason, better to have a debate about whether the ability to recall a judge should exist at all and, if so, under what standard or for what reasons. Lawmakers, or the people, have the tools to address any perceived problem with recalls.

Anonymous said...

I'm pretty conservative. I disagree with most left wing stunts. And I agree almost all recalls have a tendency to chill judicial independence. But come on. This is an exceptional circumstance. Saying "The sentence seemed too low to most observers" is the understatement of the century. Are you saying a recall is never okay?

Anonymous said...

Also, Judges SHOULD NOT be elected!