California judges defend their independence and the rule of law

When the rule of law is under attack, judges are among its natural defenders. But the very nature of their positions prevents them from doing or even saying much outside of their courtrooms. They have to avoid any appearance of bias or partisanship.

That’s why it was so noteworthy, nine years ago, when California Chief Justice Tani Cantil-Sakauye stuck her neck out by calling on Trump administration officials to stop making immigration arrests in courthouses. Court is a place where witnesses, litigants, criminal defendants and anyone else should be encouraged to come without fear, in pursuit of justice, Cantil-Sakauye wrote. Using court as “bait” for arrests undermines that purpose, she said.

Her letter resonates today, as the second Trump administration fuses its escalated immigration enforcement with a broad attack on the judiciary, particularly against judges who rule that any individual patrol, arrest, imprisonment or deportation violates due process and other constitutional principles.

Attacks on judges

Trump has called judges who rule against him “crooked.” Attorney General Pam Bondi named three who should be removed because in her opinion they cannot be impartial (meaning they ruled against the president). White House aide Stephen Miller branded judges who block Trump actions as “communist.” Elon Musk, who briefly had a powerful although unofficial role with the Trump administration, called for “a wave of impeachments” against judges who slowed his attempted mass firings of federal workers.

The verbal abuse was so virulent and the impeachment threats so frequent that U.S. Chief Justice John Roberts told them to knock it off. He reminded the president that the proper response to an unfavorable ruling is appeal, not impeachment. But the administration paid Roberts no more heed than it did Cantil-Sakauye in 2017.

In the face of such attacks, can judges offer anything with more teeth than a strongly worded letter? No, given the limits imposed by judicial conduct code. That leaves it to others to defend the third branch of government and the rule of law. 

As it happens, some retired judges (including Cantil-Sakauye, who now heads the Public Policy Institute of California after her term on the bench ended in 2022) have stepped up. 

Before examining whether their efforts amount to much, let’s consider whether they’re necessary. Federal judges have lifetime appointments, and recriminations against them could easily be dismissed as just so much political blather, predating the Trump era by two centuries. Impeachment and removal of federal judges is rare. House Speaker Mike Johnson’s recent statement of support for actual impeachment of U.S. District Court Judge James Boasberg for his ruling in an immigration case will most likely amount to nothing. Rep. Andy Ogles’ childish “wanted” poster picturing judges he wants impeached was a quasi-successful bid for attention that won’t oust any judge.

The rub is that we live in an era in which political blather can quickly turn into intimidation and violence, and can threaten basic American institutions of liberty. Remember that Trump’s fact-free insistence that the 2020 election was stolen from him led thousands of his supporters to ransack the Capitol on Jan. 6, 2021, in an effort to prevent the certification of his successor. It was blather with a dangerous bite, and it instantly, if perhaps temporarily, dampened much of Americans’ hard-won confidence in the integrity of elections.

Actual or implied threats

There is little reason to believe that a president who showed himself so willing to undermine free and fair elections would worry about weakening an ostensibly co-equal branch of government which, by design, has little power to protect itself.

So it is not lost on judges that threats against them could be picked up and acted on. The most cited example stems from a California lawyer’s assassination attempt against U.S. District Judge Esther Salas of New Jersey that resulted in her son’s murder. The killing in 2020 was apparently unconnected to national politics. But since then a number of judges who have ruled against the Trump administration have been sent pizzas in the son’s name. The statement is clear: We know how you ruled and we know where you live.

It’s important to note that judges are targeted from multiple political quarters, not just the White House and not just by MAGA Republicans. When Gov. Gavin Newsom was unhappy with a federal court ruling on homeless encampments in 2023, he said he considered posting the judge’s phone number on a billboard. “Judges must be held accountable,” Newsom said on social media.

Held accountable how, exactly? Rulings that are unsupported by law are overturned on appeal. Judicial misconduct can be sanctioned by oversight bodies. Even Trump administration officials haven’t directly threatened to dox judges they don’t like, notwithstanding the ominous pizza deliveries.

Unlike federal judges, California state judges are elected and therefore accountable to voters. But that system poses its own dangers to the integrity of the judicial system and the rule of law. If voters are able to oust a judge simply because they don’t like a ruling (as Trump would like to do in the federal system), then judges might shape their rulings to win public support, rather than to reflect their best understanding of the law, the facts of the case and the interests of justice.

Does it happen? Yes. Two New York University professors studied criminal sentences from six California counties in the wake of a recall campaign against Santa Clara Superior Court Judge Aaron Persky, after his controversially light 2016 sentencing of a Stanford student convicted of sexually assaulting an unconscious woman. The professors found an “instantaneous” 30% increase in the length of criminal sentences handed down by the 158 judges whose cases were studied. The evidence suggests that elected judges, despite their insistence that they follow only the law, may alter their rulings when under political pressure.

Nor is it rare for elected prosecutors or sheriffs to deflect blame for crimes committed on their watch by pointing the finger at judges whose rulings complied with all laws. Riverside County Sheriff Chad Bianco, currently a candidate for governor, led a misleading campaign to pressure a judge in his county to resign (she didn’t) after a defendant she ordered released, in accordance with the law, killed a sheriff’s deputy. 

Blaming judges

Retired Santa Clara Superior Court Judge LaDoris Cordell resigned from San Francisco District Attorney Brooke Jenkins’ Innocence Commission in protest of Jenkins’ sharp criticism of judges. Jenkins formerly blamed her predecessor for public safety problems in San Francisco, but began blaming judges when she succeeded him.

“The place for a prosecutor to disagree with a judge’s ruling is in the courtroom, not on social media and not in the streets pandering to voters,” Cordell wrote in her resignation letter.

Being a retired judge, Cordell could speak out against attacks on the independent judiciary in a way that sitting judges cannot.

Other retired judges have begun to stir, and to organize, and to fight back. 

On Sept. 17 — Constitution Day, a fitting day for defense of the rule of law — 104 retired California judges and justices (including Cordell) signed a “Declaration of Judicial Independence” responding to “unjust public criticism that threatens a fair and impartial judiciary.” The declaration was written, and the campaign was organized, by retired superior court judges Brett Alldredge of Tulare County, George Eskin of Santa Barbara County, Suzanne Ramos Bolanos of San Francisco, and Judge John Pacheco of San Bernardino County.

The same day, nearly 50 retired federal judges who are part of the Article III Coalition authored their own letter arguing that threats to “intimidate, harass, and pressure judges, and sway their opinions” are an attack on the Constitution. 

Defending a revolution

And on Dec. 15, Bill of Rights Day (who knew there was a Bill of Rights Day?), 45 retired state chief justices, including Cantil-Sakauye and her predecessor, Ronald George, signed onto a letter pledging to defend a strong and independent judiciary.

None of the documents called out Trump, or Newsom, or anyone else for their attacks on judges, nor did they suggest any possible consequences of continued attacks. So, just a few more strongly worded letters, just like Cantil-Sakauye’s from 2017? Big deal.

But hold that thought.

We are six months away from the 250th anniversary of a particularly strongly worded letter, sent to all mankind and laying out a bill of complaints against tyranny.

The signing of the Declaration of Independence was preceded by years of debates, street protests, committees of correspondence and other actions among people of diametrically different political points of view. It took quite a bit of time before American colonists could join and sign on to a register of grievances that included the king making judges “dependent on his will alone” and obstructing the administration of justice. 

There was also something about putting troops in the street without the consent of legislatures.

It’s important, and timely, that retired judges have mobilized to defend the ideals of the Revolution. It’s good that they have spoken up. Perhaps it’s now time for them to speak more loudly, and more often.