Defending the Ninth Circuit Court of Appeals, Chief Justice John Roberts assured the public that federal judges were not “Obama judges or Trump judges, Bush judges or Clinton judges,” but dedicated, independent judges doing their “level best.” Remarks like those of Chief Justice Roberts are rare. That is because the judiciary’s playbook has long dictated that judges decline to defend themselves against partisan or other specious attacks. California judges, however, may be suggesting a new approach.
This year, assistant public defenders challenged four judges of the San Francisco Superior Court in their reelection bids. The appellate justices with jurisdiction over the San Francisco trial courts publicly endorsed the incumbent judges. The endorsements were a first for the appellate justices and helped the four incumbents win reelection by large margins.
During the reelection campaigns, Appellate Court Justice J. Anthony Cline authored a letter to the editor denouncing the challengers’ “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 [a]s an unmitigated act of political opportunism.” Justice Cline quoted one challenger as claiming that “a Schwarzenegger appointee doesn’t reflect the values of our community, it’s that simple.” Justice Cline sent the same message as Chief Justice Roberts—there were no Arnold Schwarzenegger judges or Jerry Brown judges but only dedicated, impartial judges.
The challenge to the four incumbent trial judges together with the high profile recall of Judge Aaron Persky, helped convince the California Supreme Court to amend Canon 5 the California Code of Judicial Ethics to expressly authorize judges to “solicit campaign contributions or endorsements for their own campaigns or for other judges and attorneys who are candidates for judicial office (emphasis added).” The amendment permits judges to solicit contributions and endorsements from anyone except subordinate judicial officers and court staff. So, judges may now hit the campaign trail and personally solicit funds for incumbent judges and lawyers seeking judicial posts. In other words, the California Supreme Court concluded that the political threat to judicial impartiality and independence was severe enough to justify the use of judicial prestige to level the partisan playing field.
The actions of Chief Justice Roberts and the California Supreme Court may signal a move away from the judiciary’s traditional inclination to remain aloof and refrain from defending itself. Maybe that luxury is a thing of the past.