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A self-inflicted wound to judicial independence

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Many on the left claim they are worried that the Trump administration will destroy the independence of the judiciary by appointing judges who will support the right-wing agenda. They have a point, but if they are indeed concerned with judicial independence — as distinguished from furthering their own partisan agendas — they should be equally concerned about a recent recall of a judge in California.

Judge Aaron Persky was recalled because he showed leniency in sentencing a Stanford student who was convicted of raping “Emily Doe.” Both the convicted man, Brock Turner, and the victim had been drinking at a fraternity party, and he had sex with her while she was apparently unconscious. Because he was a first offender and himself inebriated, the probation department recommended that the Stanford freshman receive a non-prison sentence. Judge Persky sentenced Turner to six months in jail and three years of probation.

{mosads}This sentence caused outrage among many feminists and a demand for the judge’s recall. Reasonable people can certainly disagree about whether the sentence was too lenient, but reasonable people often disagree about particular sentences, with liberals often criticizing sentences as being too harsh.

Yet, demanding a recall of a judge because of disagreement with a particular sentence has institutional implications that transcend a single case. The campaign to recall Judge Persky was led by a feminist law professor from Stanford named Michele Dauber, who argued that Judge Persky was too lenient in his sentence and that she wanted to send a message to other elected judges.

Opponents of the recall included prosecutors and judges, who argued, “It certainly appears the goal is to teach judges, all judges, some lessons: If you want to keep your job as a judge, keep an eye on media reports of public sentiment when you are exercising your sworn duty to sentence a defendant in light of the law and the facts.”

Professor Dauber succeeded in recalling Judge Persky but, in doing so, she and those who voted for the recall inflicted a deep wound on judicial independence. Today, they recalled a judge who made a ruling against their agenda. Tomorrow, this recall will energize extremists from the right to recall judges who make rulings supporting the left-wing agenda.

California has already experienced a successful right-wing effort to remove liberal judges. Back in 1986, Chief Justice Rose Bird and Associate Justice Cruz Reynoso were voted out of office because of their opposition to the death penalty and their support of other liberal agenda issues. We are likely to see more recalls and contested judicial elections now, organized by extremists on both sides.

The sad reality is that the last thing extremists want is judicial independence. What they want is judges who will do their bidding, who will support their agenda and who will vote their side. In an age when nearly everybody picks a side and supports it without regard to neutral principles of justice or civil liberties, the danger to judicial independence comes equally from the left and the right.

The difference is that the left needs judicial independence more than does the right. This is because independent judges are supposed to defend the rights of the disenfranchised, the weak, the discriminated against and those who cannot prevail in our majoritarian political system. No judge has ever been removed from office for being too tough on crime, for imposing excessive sentences, or for siding with prosecutors. The recall is a right-wing tool that now has been sharpened by the hard left.

So the decision to recall Judge Persky may benefit the extreme left in the short run, but it hurts liberals and progressives in the long run. But extremists always demand immediate gratification and rarely look to the long-term implications of the damage they are doing. The ultimate losers will be African Americans, Hispanic Americans, Native Americans and other minorities who too often are treated unfairly by our legal system.

Allow Fordham law professor John Pfaff to have the last word: “The recall will make judges more aggressive, and in ways that will never be neatly confined to the issues in the Turner and Persky cases. More people will be sent to prison, and that increase won’t make us safer. Since a majority of people in prison are black or Hispanic, the impact of this toughness will fall disproportionately on minorities. For those hoping to see the United States become a less punitive place, the recall’s success is disappointing.”

Alan M. Dershowitz is the Felix Frankfurter Professor of Law, Emeritus, at Harvard Law School. He is the author of “Trumped Up: How Criminalizing Politics is Dangerous to Democracy” and “The Case Against BDS: Why Singling Out Israel for Boycott is Anti-Semitic and Anti-Peace.” You can follow him on Twitter @AlanDersh and on Facebook @AlanMDershowitz.

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