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rule of law
Keep an Eye on Santa Clara County

A state commission last week has cleared Judge Aaron Persky of wrongdoing in the case of Brock Turner—the Stanford swimmer who was convicted of sexually assaulting an unconscious woman and sentenced to six months in jail, prompting a national firestorm and calls to remove Persky from the bench.

From the report of the Commission on Judicial Performance (via the Washington Post):

The commission has concluded that there is not clear and convincing evidence of bias, abuse of authority, or other basis to conclude that Judge Persky engaged in judicial misconduct warranting discipline.

First, the sentence was within the parameters set by law and was therefore within the judge’s discretion.

Second, the judge performed a multi-factor balancing assessment prescribed by law that took into account both the victim and the defendant.

Third, the judge’s sentence was consistent with the recommendation in the probation report, the purpose of which is to fairly and completely evaluate various factors and provide the judge with a recommended sentence.

We wrote in the midst of the controversy that while Persky’s sentence did seem lenient to us, the slash-and-burn tactics used against him, which included of viral petitions to have him removed and a well-funded recall campaign, were deeply troubling from the perspective of the rule of law. In a properly-functioning legal system, judges should be able to use their professional discretion to apply the law without fearing that they will lose their jobs if punishments for individual defendants are unpopular.

Unfortunately, Michele Dauber, the Stanford Law School professor who has been spearheading the prosecution of Persky in the court of public opinion, said the effort to have him booted from office by popular referendum will proceed despite the Commission’s findings. “We will continue to proceed with the recall election as it is important for Santa Clara County voters to decide whether Judge Persky should remain on the bench,” she said. While this method of ousting judges is entirely legal, there is very little precedent for respected local judges (both the public defender and district attorney have vouched for Persky) to be targeted on the basis of one politically charged decision that whipped up a media frenzy.

Over the past few months of political turbulence, many commentators, especially on the Left, have expressed concerns about America’s commitment to various norms of liberal-democratic government—including respect for the legitimacy of official findings, the independence of the judiciary, and the rule of law. If these norms are under threat, then champions of liberalism should defend them not only in Washington, but at the state and local level as well. That means keeping on eye on Santa Clara County in 2017, where the fundamental democratic norms will be put to the test. Will the heart of Silicon Valley affirm judicial independence, or will voters toss it out the window in a crusade based on a wave of misleading social media outrage? We’ll be watching.

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  • Wayne Lusvardi

    We will see whether a moral crusade by feminist lawyer-sociologist Michele Dauber, who is an anti sexual assault advocate under Title 9, (but also a post-modern backpacker, skier and keeper of five chickens) can extend beyond the moral outrage of the Knowledge Class on online social media to an actual recall election over a highly symbolic offense of the sentencing of a misdemeanor. One hundred years ago the feminist moral crusades involved temperance, child labor and opposition to monopolies. Now it extends to complicit behavior by both young men and women of the Knowledge Class in wrongdoing facilitated by alcohol consumption of both parties while child labor and monopolization has bee outsourced elsewhere as part of “globalization”. If a recall is successful where will this stop?

  • CaliforniaStark

    Although I oppose the recall of Judge Peisky, do not believe the fact the recall attempt is taking place is a threat to the commitment to the norms of liberal-democratic government. In California being a superior court judge is an elective position, subject to re-election every six years. State supreme court and appellate court judges are up for re-election every 12 years. The overwhelming majority of judges are re-elected; a notable exception being in 1986 when controversial State Supreme Court Chief Justice Rose Bird and two other supreme court justices were defeated. Judicial elections provide accountability; something that can be beneficial, as was the case with Rose Bird.

  • Fat_Man

    That a law professor is leading this is just another argument for shutting down the law schools.

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