In the late 1950s and early ’60s, one could drive for miles across the South and see “Impeach Earl Warren” signs along the highway (a strident campaign that would make “Three Billboards” blush). The so-called Warren Court, after all, had voted unanimously to desegregate America’s schools (Brown v. Board of Education of Topeka Kansas), and Warren’s despised name had become synonymous with that unwanted progressivism that would ultimately alter southern society — in some states, then still antebellum — over its objection.
In essence, the view was this: we don’t like the judge’s decision, so let’s get rid of him. Fortunately, nothing came of the “Save our Republic” roadside campaign, even if it was armed with President Eisenhower’s post-Brown, unsubtle avowal that appointing Warren as chief justice was the “biggest damn fool mistake” he’d ever made. And so Warren and his Supreme Court went on to make landmark, history-changing decisions until he voluntarily retired in 1969, long after de jure segregation no longer was permissible.
A case in point is the successful out-of-state bankrolled challenge to the retention of Iowa’s chief justice and two associate justices for having decided in 2009 that same-sex marriage was permitted under the Iowa constitution (six years before the U.S. Supreme Court made it the law of the land). These three justices were not “retained” at the end of a term.
That case aside, it is not always that a constituency effects the removal of a judge because of policy issues. Yet recently we have seen judges aggressively challenged — especially when they mete out sentences in criminal matters with which the populace disagrees. There are petitions, websites, social media campaigns — all looking for the ouster of elected state judges (federal judges are appointed for life). Do we truly want judges to be placed in the predicament of putting their moistened fingers in the air to learn which way the wind is blowing before deciding controversial cases?
In other words, do we want judges to abandon their independence and relegate their decision-making to an aggravated public? And, importantly, do we want out-of-state interest groups, as in the case of Justice Ternus and her colleagues, to dictate who should be sitting on the bench (the Brennan Center for Justice annual report, “Who Pays for Judicial Races?” is an eye-opener).
Let’s put it in the perspective of two judges currently in the news. Oklahoma Judge Wallace Coppedge’s term is about to expire. He sentenced a defendant who pleaded guilty to rape and other crimes to 15 years’ probation. Notably, the prosecutor had asked for this sentence, seemingly because the defendant is blind. The victim’s parents signed off, although there is a question as to what the prosecutor, who later resigned over the uproar, actually told them. Because Judge Coppedge could have rejected the prosecutor’s requested sentence, there is an online petition demanding that he be “removed from the bench for this dangerously lenient sentence” (noting seven other cases where he allowed pedophiles and child rapists to avoid jail).
Judge Aaron Persky, in 2016 in California, sentenced Stanford athlete Brock Turner to six months for sexual assault. Persky’s overall record was questioned, and at his own request he was reassigned so that he no longer hears criminal cases. Shortly thereafter, he ran unopposed and was re-elected for a six-year term. But opponents formed the Committee to Recall Judge Persky, demanding that he be removed from the bench mid-term. Judge Persky has chosen to fight and his supporters, with Voices Against Recall, refute the bias claims. Judge Persky’s term will not end until 2022, but the community successfully demanded that a recall election be scheduled in an effort to earlier remove the judge.
Now, do I agree with the sentences imposed by Judge Persky or Judge Coppedge? Certainly not (although I must acknowledge I have no idea what went into their analyses). But removing judges because the public doesn’t like their decisions sends us all down a slippery slope. And more so when, as in the case of Judge Persky, the public bands together to remove him in the middle of a term.
The Brennan Center's 2015 report, “How Judicial Elections Impact Criminal Cases,” shows clearly that judges impose significantly longer sentences when an election, or recall vote, is on the horizon. Or, as a former judge put it: “Judges who are running for reelection do keep in mind what the next 30-second ad is going to look like.”
We cannot want judges to make decisions based on which way the political, or public policy, barometer points. I do not say that there is never a reason to remove a judge, or vote him or her off the bench when a term ends. But when the public can circulate petitions and demand recall elections because they don’t like a result — rather than because the decision does not comport with law and precedent — judicial independence deteriorates and we are left with decision-making by whim of the public.
Federal judges are not so constrained. If they render an unpopular decision, they will not be removed from the bench. But, one wonders, if they had been subject to the possibility of removal, would they have rendered “activist” or progressive decisions such as Brown v. Board of Education, which are decided on the law but which may push the populace to a place it is not ready to go?
It is surely not always preferable for judges to be life-tenured; there certainly have been clinkers among them. But to the extent that judicial independence is a core value, we need to find a better way to ensure that decisions by elected state court judges don’t bow to the caprice of the electorate.
Joel Cohen, a former state and federal prosecutor, practices criminal defense law at Stroock & Stroock & Lavan LLP in New York. He is an adjunct professor at Fordham Law School and is the author of "Broken Scales: Reflections on Injustice."