When Should Liberals Try to Remove Judges From the Bench?

by Neil H. Buchanan

Judges inevitably make some decisions that outrage people.  The timeless question is when a decision crosses a line into territory that rightly calls for a judge's removal from the bench.  Calls for judges to be deposed have more typically been heard among conservatives in the U.S., but the question comes up regularly among liberals as well.

Even in states where judges are elected, those judges are in various ways protected from the prevailing political winds through a number of counter-majoritarian measures (nonpartisan elections, appointment followed by retention elections, and so on).  Non-elected judges are even more politically independent, especially at the federal level, where the standards for impeachment were quite deliberately set at a high level.

In the abstract, therefore, everyone accepts the idea that judges cannot simply be politicians in robes.  Three recent incidents, however, provide potentially useful insights in addressing the question of when (not if, because there seems to be no serious argument that a judge should never be removed for misconduct on the bench) a judge must go.

The most recent story involves a state judge in Oklahoma who approved a settlement of a case in which a 13-year-old girl had been raped.  After pleading guilty to first-degree rape, forcible sodomy and rape by instrumentation, the defendant received no jail time.  According to The Washington Post:

"More than 102,000 people have called for [the presiding judge's] removal from the bench in an online petition. Calls for Coppedge’s removal escalated further after an Oklahoma lawmaker filed a resolution in the House seeking to remove Coppedge, though it has yet to be voted on."

It is not clear what will happen next, but for now we can at least say that people are understandably incensed about the apparent leniency of the sentence ("15 years probation, two years with an ankle monitor and a lifetime on the sex offender registry").  If one is at all inclined to view substantive decisions as a reason to fire a judge, this could be Exhibit A.

As The Post's article notes, that Oklahoma case naturally brings to mind another recent case, where a California judge sentenced a man convicted of three counts of sexual assault to six months in jail and three years of probation, based on what appear to be some rather questionable notions of "not wanting to ruin the young man's life," or something like that.  In response to that decision, the judge has been besieged by calls to step down, and he is the subject of a recall effort to force him off the bench.

The leader of that effort is Stanford law professor Michele Dauber, who has now received multiple rape threats from enraged male supremacists.  Included with one of those mailed threats was some white powder, resulting in parts of the law school's building being evacuated.  Dauber has announced that she is undeterred.

Dauber's determination to remove this judge from the bench, however, is not shared by everyone on the political left.  No less a superstar than Berkeley law dean Erwin Chemerinsky has weighed in against the recall effort, writing in an op-ed that this is a very bad idea that could "backfire."  What is the proper remedy?

"If there is disagreement with a judge’s decision, the appropriate remedy is to appeal the ruling, not to seek removal of the judge.  Such recall efforts are a serious threat to judicial independence as judges will fear that unpopular rulings will cost them their jobs.  Justice, and all of us, will suffer when judges base their decisions on what will satisfy the voters."

The natural response from the pro-recall side is that there has to be some limit to what the people can tolerate from judges.  Not every bad decision is going to be reversed, simply because over-worked appellate judges sometimes miss the mark themselves.  And even so, litigants on either side of a case might feel forced to accept unfavorable terms that would not be subject to appeal, simply because both sides develop their litigation and settlement strategies in the shadow of what is known about the presiding judge.

Having articulated that point, however, I am nonetheless not taking a position here on that particular recall effort.  I am saying that this is a tough one, and Chemerinsky's warning is certainly important.  People on the left should be especially worried about turning the courts -- and in particular the criminal courts -- into venues where public passions can sway judges.  "Hanging judges" and overzealous prosecutors and law enforcers (recall the impunity with which oft-reelected Arizona sheriff Joe Arpaio acted for decades) can be seen as the modern equivalent of lynch mobs.

The point that Chemerinsky is making, of course, is the familiar slippery slope argument.  If we allow ourselves the indulgence of attacking this judge, he admonishes us, we will soon live to regret having opened that door to highly unappealing attacks on judicial independence.  And sure enough, we soon saw what would seem to be a prime example of what Chemerinsky was warning us about.

The Pennsylvania Supreme Court recently delighted opponents of gerrymandering by issuing a ruling that forced the Republican-dominated state legislature to redraw its congressional district map in a way that would more closely reflect the actual partisan balance in the state.  Because the Republicans had so successfully "packed and cracked" liberal-leaning voters, they had essentially stolen four seats in Congress, attempting to give a purple state an all-but-permanent 13-5 advantage for Republicans in its congressional caucus.  When the state's Republicans refused to redraw the map, the court did so for them.

Because the court's holding was based on the state constitution, the decision -- which could, to be clear, allow Democrats to pick up 4 out of the 24 seats that it needs nationwide to win back the House in 2018 -- is essentially final.  (State court decisions are, of course, sometimes reversible by the U.S. Supreme Court, but this appears not to be such a case.)  Happy outcome for liberals, right?  Justice is done.

Of course not.  Pennsylvania's Republicans, including those holding national office (such as the state's arch-conservative U.S. senator, Pat Toomey), are now talking about impeaching all of the offending judges on their state's supreme court.  The arguments are notably specious, with one state legislator having written a letter "arguing that the court’s majority 'engaged in misbehavior in office' because the ruling "overrides the express legislative and executive authority' to create laws," according to The Post.

That the court's ruling was applauded by outside experts, of course, means nothing to these Republicans.  They are essentially saying that they stole those seats fair and square, and they want them back.

Meanwhile, Chemerinsky's warning rings in our ears.  Another law school dean, Vikram Amar of the University of Illinois, wrote a nice piece on Verdict explaining what was happening in Pennsylvania and elsewhere, noting that majoritarian trampling of minority rights is essentially inevitable in our system, especially at the state level.  In the end, Amar says, liberals need to do a better job of winning state-level elections.

Even though that is good advice, the question here is whether liberals need to worry about setting a dangerous precedent by attacking judges for bad decisions.  The Oklahoma rape case seems to have a non-partisan cast, whereas the California rape case has a liberal cast, and the response to the Pennsylvania gerrymandering case is partisan to its core.  Do we liberals doom ourselves to Pennsylvania-like situations if we approve of Oklahoma-like situations that then lead us to approve of California-like situations?

One possible response, as I have discussed occasionally here on Dorf on Law (most recently, here), is that slopes simply are not especially slippery.  When we turn the switch in our minds to "lawyer mode," we can convince ourselves that any supposedly unbounded principle can lead us immediately to ruin and regret; but the fact is that the political process has limits that typically prevent parades of horribles from going on the march.

Another response is that worries about such niceties amount to unilateral disarmament.  When I was in law school, I took a course from the famed and brilliant feminist legal theorist Catharine MacKinnon.  During one class meeting, a student (yes, it was me) asked her about the possibility of setting a bad precedent by using the legislative process in a way that conservatives could abuse when they inevitably regained power.

MacKinnon's response was essentially that conservatives were going to do what they wanted to do, no matter what liberals had once done.  Restraint on liberals' part was hardly going to constrain conservatives who might find an opportunity to exploit a political or legal opening.  I suspect that U.S. Supreme Court Justice Merrick Garland might nod knowingly at MacKinnon's prescience.

Even so, it might be possible to imagine that conservatives could justify themselves to skeptical centrists by saying, "Well, the Democrats do it, too."  This, indeed, is how they have attempted to deflect criticism over their hyper-politicization of the Supreme Court, wrongly invoking the Robert Bork fight as proof that "liberals started it."

But that merely demonstrates that Republicans have no hesitation in attempting to rewrite history, claiming that what was a scrupulously fair process for Bork was the opposite.  I suspect that MacKinnon not only would be unmoved; she would view this as proof of her point.  Democrats acted with restraint, yet now we have Clarence Thomas and Neil Gorsuch on the Court.

Still, there is every reason to think that liberals who decry conservative attacks on Pennyslvania's supreme court will be told that "you do it, too, ya know."  Attacking judges makes it difficult to argue that judges should not be attacked.

In a way, this is a cousin of an argument that Michael Dorf recently offered regarding the Heller decision, in which the Court's 5-4 conservative majority said that the Second Amendment provides an individual right to own guns.  Even though Justice Scalia's opinion made clear that the right could be limited in a variety of ways, that is not what people "heard" the court to say.  Here, liberals can say all they want that they are only attacking judges in extreme situations, but people will only remember that liberals attacked judges

Even so, that might still lead to the conclusion that liberals should go ahead and attack judges when appropriate and then deal with the political consequences as they arise.  As I noted above, even the most rigid defenders of judicial independence (including those who wrote the U.S. Constitution's protections for federal judges) do have their limits.  Nothing is absolute.

In the end, therefore, liberals should admit that we cannot -- and should not -- pretend to believe in something that we do not believe in.  If we are going to argue that conservatives are going too far or are being too partisan, we can do that by pointing to our greater restraint and less partisan departures from a pure independence ideal, not by maintaining the fiction that we never depart from that ideal.  We might not win all of those arguments, but we will not lose all of them, either.