Chief justice defends judicial challenges and efforts to fight them

SAN FRANCISCO -- Chief Justice Tani Cantil-Sakauye defended the current system in which judges must face voters in elections during a wide-ranging discussion Wednesday, but she also said she favors longer terms for appellate justices and supported Los Angeles County judges' political action committee to fight challengers.

She announced plans to seek retention herself as chief justice in 2022 for another 12-year term.

Cantil-Sakauye struck a middle ground while discussing recalls and challenges to sitting judges during her annual conversation with media organizations, saying no system of choosing judges is perfect, including the lifetime tenure enjoyed by federal judges. She would rather judges "confront those issues" raised by critics "rather than insulating them entirely."

Referring to the recall in 2018 of Santa Clara County Superior Court Judge Aaron Persky over his six-month jail sentence for a former Stanford University student for sexual assault of an unconscious woman, Cantil-Sakauye defended the voters' right to do so.

"A recall is a powerful tool," she said. "I think it is the people's right to do that. It's part of what makes us accountable."

Cantil-Sakauye said forcing judges to win elections to keep their seats "does no harm" but did say she would rather appellate justices face voters every 12 years instead of six.

Many legal observers have been harshly critical of the Persky recall and of an effort two years ago to oust four San Francisco County Superior Court judges because they had been appointed by a Republican governor, saying judges will refrain from possibly-unpopular decisions to avoid challenges at the ballot box.

Los Angeles County Presiding Judge Kevin C. Brazile announced a political action committee to defend challenged incumbents this fall. The Los Angeles Judges Protection Committee has raised more than $100,000 from current and retired judges from the county.

Cantil-Sakauye applauded that effort, touting the ability of a political action committee to "act quickly. I hope it also means a [way] to educate" voters about the role of judges, she said.

Meanwhile, the state Supreme Court is mulling a possible ethics code change that would allow judges facing a recall challenge over a particular decision to discuss the procedural or factual basis of the decision that's the basis for the recall, even if the case is pending.

Not all judges agree with the proposal, Cantil-Sakauye said. She acknowledged judges in urban areas are more concerned about challenges even though few actually happen, or succeed.

"I think judges are in a very difficult position," she said. "They're thought of as politicians in black robes ... [but] can't speak fulsomely on the issues" that might inspire a challenge. Even other judges can't help them because they are bound by the same ethics code.

On other issues, Cantil-Sakauye said she was pleased with budgetary support from Gov. Gavin Newsom and the state Legislature even though it's expected there will not be funding for any additional judicial positions this year. "I like to savor the fact that we had 25 last year," she said.

Cantil-Sakauye said she is always concerned about the state budget, having become chief justice during a severe recession and sharp cutbacks to judiciary funding. "I see fear around the corner," she said. "We're first to be cut, last to be restored" during bad economic times, the chief justice added.

Judicial Council Administrative Director Martin Hoshino said he has been pleased about several pilot programs to allow judges to reduce fines and fees for people without the ability to pay. As a result, the courts get less money from fines and fees with the number drifting below $1.5 billion statewide.

The general fund has picked up the slack although Cantil-Sakauye said most of the money doesn't go to the courts anyway. "Fines and fees are a national problem," she said. "It makes the courts look terrible because we're required to collect it."

She said the court is evaluating how to handle clemency requests from the governor, which are accepted or denied without any indication of how the justices voted unless they choose to make a decision public.

Cantil-Sakauye said she believes the state is "moving in the right direction" in eliminating money bail but said the voters would decide next year whether to overturn a law to phase out the system.

Of her plans to seek retention in 2022, Cantil-Sakauye said: "My plan now is yes. It's exciting with the new governor. This is the best job."