The torches-and-pitchforks campaign to recall Santa Clara County Superior Court Judge Aaron Persky, who was widely criticized for ordering a lenient sentence for a Stanford swimmer convicted of sexual assault, is gathering momentum.
Lara Bazelon wrote for Politico earlier this week:
In a charge spearheaded by Stanford law professor Michele Dauber—a close friend of the victim’s family—an effort is underway to recall Persky from office. Sixteen state legislators have demanded that the California Commission on Judicial Performance investigate Persky for misconduct. Over a million members of the feminist organization UltraViolet signed an online petition voicing their agreement. The group also hired a plane to fly over Stanford during graduation carrying a banner that said, “Protect Survivors. Not Rapists. #PerksyMustGo,” and paid for a billboard on a nearby, high-traffic freeway that sends the same message.
And as Alexandra Brodsky and Claire Simonich noted in the New York Times, this is no longer merely an internet uprising of young feminists. Wealthy donors are holding a series of “celebrity-studded fundraisers” aimed at burying the judge in the court of public opinion.
We’ve written before about this case in the context of criminal justice policy. Studies show that judicial elections tend to lead judges to issue harsher sentences for all manner of crimes. So the campaign against Persky (and attendant efforts to beef up California’s mandatory minimums for sex crimes) appear to be in tension with the widespread liberal project of reducing incarceration.
But there is another way of understanding this campaign and connecting it to what is happening in American politics more broadly.
Last weekend, we highlighted a disturbing study showing that the norms underpinning liberal democracy were decaying across the Western world, especially among young people and the affluent. According to the World Values Survey, more and more Americans seem to be comfortable with an all-powerful executive, with military rule, and with restrictions on freedom of speech. The intensifying campaign against Persky can be seen as evidence of decay of another core democratic norm: Respect for the rule of law. Because in a liberal democracy, as the Los Angeles Times put it, “justice in any individual case isn’t put to a public vote.”
This (of course) doesn’t mean that sentences can’t be criticized and contested. That too is part of the democratic process. But it does mean that, by and large, judges should not fear public retribution for a single decision in a politically charged criminal trial, so long as they acted competently and within the law.
To be sure, there have been judicial recall campaigns before, and liberal democracy has survived. Backers of this campaign can surely point to some precedents to defend their position and its compatibility with the rule of law. But the effort to remove Persky is genuinely unusual, given his sterling reputation as a judge, the opposition from both the Santa Clara County District Attorney and the Santa Clara County Public Defender’s Office, and the absence of any allegations of actual wrongdoing, other than exercising his discretion in a way that was unpopular.
As Jonathan Chait has written, political norms are not vitiated in a flash, “but step by step, in a series of incremental, leapfrogging violations by the opposing sides.” American political norms have come under acute strain in recent years as trust in major institutions declines and informal rules of politics are bent and then broken. This trend been highly visible on the national stage, but if you look hard enough, there are signs of it at the state and local level as well. And the illiberal political movement currently underway in Santa Clara County is as good an example as any of America’s current state of democratic decay.