Michael Nava and the Myth of Judicial Independence

I accompanied Michael Nava (above right), the lawyer and novelist who is running for San Francisco Superior Court Judge, to Jane Morrison's Chinese New Year's fundraiser. Michael had been through a hellish couple of weeks because he had just committed the unforgivable sin, which was changing his mind about running for an empty judicial seat and instead running against a sitting judge, Richard Ulmer Jr., who was appointed to his post last June by Governor Schwarzenegger.



On February 11th in The Recorder, a local legal journal, Kate Moser wrote an article about the blowback Nava has been receiving from former supporters in the judiciary because of his decision, including his own boss, California Supreme Court Justice Carlos Moreno:

"Moreno was earlier featured on Nava's campaign Web site and campaign literature under endorsements, but is no longer listed on the Web site. Moreno confirmed Wednesday that he's not endorsing Nava anymore. "I just have a policy against endorsing any candidate who runs against an incumbent judge," Moreno said. "I think it threatens the independence of the judiciary. I think if you talk to most judges, they would be reluctant to endorse a candidate who is challenging an incumbent judge."

San Francisco Superior Court judges Suzanne Ramos Bolanos and Kevin McCarthy were also listed under endorsements on Nava's Web site in January, but they are also no longer listed. McCarthy couldn't be reached by the Recorder 's deadline, but Bolanos confirmed that she had withdrawn her endorsement. "I was one of his early endorsers, but at the time he told me that he would be running for the open seat and absolutely reassured me that he was not going to be running against any of my colleagues," Bolanos said. "Sadly, I think the elections here in San Francisco have become heavily politicized, and I just don't think that's appropriate for the judicial branch."

If Presiding Judge James McBride's reaction to the challenge is any barometer, it appears Ulmer can expect some strong support from colleagues. "I am very surprised that [Nava] would take on a candidate whose apparent only deficit would be that he will not be getting the Democratic Central Committee endorsement," McBride said. "I question what it is about Judge Ulmer's record that could make him a suitable target for a race based on qualifications. If Mr. Nava is attempting to make this nonpartisan race into one based on partisan endorsements, we hope he's not successful."

I asked Nava how he'd come to this decision, and he told me, "There were too many of us who were friends and allies running for the same empty seat, and it made me heartsick. [Linda Colfax, above left, from the San Francisco Public Defender's Office, is one of them.] One of the main reasons I'm running is because I believe strongly in increasing judicial diversity, and this election just felt like underrepresented friends fighting over scraps at their master's table. I knew the blowback was coming, and writing out checks to return donations was hard, and so was being publicly attacked by so many colleagues, but after I made the decision a huge weight lifted from my chest. It was the right thing to do."



On February 17th, in the San Francisco Daily Journal, another legal publication, Nava struck back at the hypocrisy of those who accused him of sullying judicial independence and turning the apolitical judiciary into a partisan brawl. Nava is such a good writer that his defense really can't be improved upon, so I'm going to quote the whole thing.

"When I filed for a seat on the San Francisco Superior Court currently occupied by a Schwarzenegger appointee, the reaction from other judges was swift and predictable; they circled their wagons and accused me of politicizing the judiciary, engaging in partisanship and even threatening judicial independence. A judge friend of mine in Los Angeles told me recently that when you become a judge, two things happen: You lose your first name and no one will criticize you to your face. Sadly, this kind of deference and absence of accountability can foster, not judicial independence, but judicial isolation. So, let me set the record straight about judicial independence and politics and partisanship in judicial races."

In article six, section 16, the drafters of California's Constitution made the decision that every California judge, from the lowliest trial judge in the smallest county to the Chief Justice, must face the voters. Thus, California's constitutional lawmakers chose to balance judicial independence with judicial accountability to the people whom the judges serve. In the case of superior court, where judicial elections are competitive and not simply retention elections, it is clear that the intent was to give the people a voice in deciding who sits on the court in their counties. In superior court races, the voters decide who has, not only the formal qualifications, but the candidates' community ties and values. These are legitimate considerations because, as everyone in the legal system knows, a judge's background and beliefs form part of the temperament that he or she brings to the job of judging. Therefore, to criticize me, or anyone, for running against a sitting judge as threatening judicial independence ignores California's constitutional mandate and the choice it represents to give voters the ultimate say about the judiciary. If judges feel that standing for election threatens their independence, their recourse is to seek a constitutional amendment, not to attack those of us who are giving voters the choice to which they are entitled under the state constitution.

Now what about partisanship and politicization? As someone who has gone through the judicial application process, I can state unequivocally that that process is not only inherently partisan and politicized, but, unlike an election, it doesn't even have the virtue of transparency. Just one example: This governor, like his predecessors, employs secret judicial vetting committees which can, quite literally, blackball any applicant without any accountability about their decision. Minority bar associations had criticized this process for its lack of transparency and, in response, the legislature passed AB 2095 which would have forced the Governor to disclose the names of these committee members. He vetoed it.

In his veto message, the Governor asserted that he takes "very seriously" his duty to "appoint individuals to the bench who are equal to the great task of serving this state." And yet, while the Governor has been apparently unable to find many gay or lesbian lawyers (maybe 1% of his appointments) or Latino/a lawyers (about 6.7%) "equal to this great task" he has found room on the bench for two white, male Republicans who were found to be not qualified by the state bar: Elia Pizzoli in San Bernardino and Charles Poochigian in Fresno.About Pizzoli, then-Assemblymember Ted Lieu observed, "Every time we've raised the issue of judicial diversity, the pushback is that the governor only looks for the most qualified applicants....At least we know now what our applicants did wrong. They were qualified attorneys instead of Republican insiders." Regarding Poochigian, a one-time Republican state senator, his former senate colleague, Sheila Kuehl wrote on her website that she had rated him not qualified because "I knew from personal experience that Sen. Poochigan's votes had consistently indicated animosity to civil rights statutes regarding gender, disability and sexual orientation."

My point is this: It is disingenuous for judges to pretend that the appointment process by which they reached office is free of politics and partisanship, and yields only the most qualified judges, while judicial elections are somehow tainted by politics and partisanship and result in less qualified judges. What seems to be happening is that some judges are affronted by the fact that they have to run for office at all. To them I would say: Go read the constitution. This isn't politics, it's democracy."

A final point about why I am running against a sitting judge and not for the open seat. When I made my decision to challenge the incumbent there were three candidates for the open seat who, like me, were either gay or lesbian, and one of them was also, like me, Latino. It is clear to me that this Governor, while he may respond from time to time to political pressure on the issue, has no real commitment to judicial diversity. I do. And I do not believe that judicial diversity will be achieved by fighting for scraps that fall from the master's table. We members of underrepresented groups have to demand our place at the table.

I am unquestionably qualified to be a judge, I represent and am a beneficiary of San Francisco's values of social tolerance, progressive politics and community, and I would bring an historic measure of diversity to the superior court as its first openly gay judge of color. That's why I'm running.