We are all LGBT current or retired judges in our great city of San Francisco. We include the first openly lesbian judge in the nation; the first openly gay and lesbian appellate judges in California history; the founder of the National Center for Lesbian Rights; founders and former executive directors of Equal Rights Advocates and the East Bay Children's Law Offices; a former chief attorney in the San Francisco public defender's office, as well as several other former public defenders; a former California labor commissioner; a former chief deputy attorney general; and a former chief deputy city attorney and the lead counsel who successfully argued the historic gay marriage case that changed lives in our community forever.
We are proud to join in strong support of our four incumbent colleagues who are being challenged in the June election. Judges Jeff Ross, Cynthia Ming-mei Lee, Andrew Cheng, and Curtis Karnow are outstanding jurists who all have worked to improve the administration of justice for San Franciscans of every race and ethnicity, sexual orientation, gender and gender identity, and socioeconomic means.
Four deputy public defenders recently announced they are running to challenge these judges. Why? The reasons they gave boil down to politics. The challengers claim that because the sitting judges were appointed by Republican former governors Arnold Schwarzenegger (three) and Pete Wilson (one), they need to be replaced. While all four incumbents are registered Democrats, according to the challengers they can't be good Democrats or, apparently, good judges if they were appointed by a Republican. They also assert that these outstanding, longtime judges, two of whom are Asian-Americans, must all be replaced on the basis that our bench lacks diversity. These arguments make no sense, are factually incorrect, and are very dangerous.
Let us say first why these arguments make no sense. The San Francisco trial bench is one of the most diverse in the state and in the country. There are African-American judges, Latino and Latina judges, Asian-American judges and eight openly LGBT judges, and all of these groups have greater representation on the San Francisco Superior Court Bench than they do among lawyers in the community. They also, in all but one category, exceed their percentages in the population at large. In short, none of these groups is underrepresented on our bench.
The irony and fallacy of the challengers' position is readily apparent when we consider that two of the challenged judges are people of color, namely Lee and Cheng.
The challengers' claim that there are not enough criminal defense lawyers, including public defenders, on the bench is similarly without any basis in fact. Judge Teresa Caffese was the former chief attorney in the Public Defender's office for many years, and there are 12 former public defenders serving on our bench. Ross, one of the challenged judges, is a former criminal defense lawyer who represented many people of every race and ethnicity who were accused of drug and violent crimes.
The danger in the challengers' logic is evidenced by their bald assertion that these four judges should be replaced because each is "A Democrat appointed by a Republican governor – how much of a Democrat is that person really?" This misguided attempt to politicize our local judiciary is a direct attack on our Constitution, which protects the independence of the judiciary and separation of powers. We need judges who do not owe their allegiance to a political party or political causes, judges who will apply the law and the Constitution fairly even if it may subject them to criticism. The importance of judicial independence from politics is most evident in difficult cases, the kind that are politically charged. A recent example is the In re Marriage Cases, in which the California Supreme Court issued a groundbreaking opinion interpreting our state constitution to guarantee our state's LGBT citizens the same rights to marriage that straight people have long enjoyed. We should remember that the author of that opinion was a straight white man who had been appointed and elevated by Republican governors. In the United States Supreme Court, the historic sodomy and marriage equality decisions were written by a straight white Republican justice who was appointed by a Republican president, namely, Anthony Kennedy. And even Roe v. Wade, the landmark decision protecting a woman's right to choose, was written by a Republican justice, Harry Blackmun. Had these justices been focused on political concerns and whether their decisions would be popular among voters, they might have made very different decisions, and we would all be worse off for it.
Judges Cheng, Lee, Ross, and Karnow
We all know, and many of us have worked with, the four San Francisco judges who are being challenged in the upcoming June election. Each one is a stellar jurist with deep community ties. Collectively they have over 50 years of judicial experience.
- Judge Lee was the first female Asian-American presiding judge in San Francisco and has been recognized by the Commission on the Status of Women for instituting mandatory domestic violence training. She founded the highly acclaimed Veterans Justice Court and helped to reduce truancy in schools by co-founding the Truancy Action Partnership. In 2014, she was awarded Judge of the Year by San Francisco Trial Lawyers, a group of respected trial lawyers representing plaintiffs.
- Judge Ross is the only incumbent to face an LGBT challenger. His commitment to serving the LGBT community has been evident throughout his career, including his community work as president of the progressive San Francisco Bar Association when he spearheaded BASF's leadership positions against Proposition 8 – the anti-gay marriage initiative, and against Proposition 209 – the anti-affirmative action initiative. He also launched the highly successful Law Academy program, which mentors high school students of diverse ethnicities and sexual orientation to prepare them for college. He took pro bono cases for the American Civil Liberties Union and argued First Amendment cases in the Supreme Court. As the first judge of the Veterans Justice Court, Ross has helped military veterans obtain housing, mental health, drug treatment, and employment services that often resulted in their criminal charges being dismissed or substantially reduced.
- Judge Karnow issued the ruling that saved San Francisco City College from losing its accreditation, to the great benefit of its diverse students, many of whom cannot afford to attend any other college. Karnow also wrote a published paper on bail reform that has been quoted widely in appellate and federal decisions requiring trial judges to consider a defendant's ability to pay in setting bail – an issue of great concern for citizens of color and LGBT people, many of whom lack the resources to post high bail amounts.
- Judge Cheng presided over the trial of a case brought by tenants against a landlord for violations of the San Francisco Rent Control Ordinance that resulted in one of the largest jury verdicts in the nation. Other notable rulings by him provided outpatient treatment to greater numbers of individuals with mental health issues and allowed veterans to maintain access to services at the San Francisco War Memorial Building.
In short, none of these judges has failed the LGBT community or communities of color in carrying out their responsibilities, because none has rendered decisions based on political affiliation, their own or that of the governor who appointed them. Replacing them with judges who have vowed to bring their own politics into the courthouse would be a terrible mistake that would not be good for the court or for any of the people it serves.
Our judicial system in California is the largest and best in the world. One reason our system is so highly regarded and its decisions are followed by other courts is because it has not been politicized like the courts in many other states. This bloc attack on our four excellent colleagues is unprecedented and based solely on politics. We must not allow it to succeed. The independence of our courts and preservation of our democracy are at stake.
In addition to the four authors listed above, this opinion piece is also signed by Judges Ron Albers, Teresa Caffese, Roger Chan, Nancy L. Davis, Gail Dekreon, Charles Haines, James Humes, Kevin McCarthy, Mary Morgan, Joseph Quinn, Kay Tsenin, and Carol Yaggy.