Thursday evening, I published my initial take on the down-ticket offices in the upcoming general election. After I did so, I received some comments on two of the judges races that have led to me reconsidering my recommendations. The questions that the exploration raised, however, was so interesting I wanted to make them a post of their own. Let me discuss the broad issues I see, and then we can go into the specific races.
Issue #1: Diversity. An issue of growing concern in any workplace is diversity. I’ve noted before my two favorite podcasts that touch on the issue: an episode of Startup where Gimlet explored their own diversity, or lack thereof. The second was an episode of Reply All (also from Gimlet) that explored diversity problems at Twitter. Both explored why diversity was so important. This exchange from the Reply All should clarify it a bit:
SCOTT: One way you can measure diversity is you can ask, literally, you know, what knowledge bases do you have, what have you learned? You can ask what experiences you’ve had?
GOLDMAN: Scott says that language, age, geography, personal hardship–they all inform how we solve problems in these crazy subtle ways. And he gave this example that I find totally mind-blowing. Where we keep our ketchup.
SCOTT: Now turns out if you’re British or if you’re African American from the South, not as a rule but generally speaking, you’re likely to keep your ketchup in the cupboard. If you’re not British and you’re not African American from the South, you tend to keep your ketchup in the fridge. And you could think “Vive le difference, who cares, right?” Well it actually does matter because suppose you run out of ketchup. If you’re out of ketchup and you’re a ketchup in the fridge person, what are you gonna use? Well you might use mayonnaise, you might use mustard because those are things you think of when what’s next to the ketchup. If, alternatively, you’re a ketchup in the cupboard person and you run out ketchup, what’s next to the ketchup in the cupboard? Well, malt vinegar.
GOLDMAN: So, the more diverse the backgrounds, the more associations you get, and the more paths towards solving a hard problem.
Ideally, the diversity of a court should reflect the diversity of the population. This helps ensure that the perspective of the accused is understood, and may also help in some cases of unconscious bias or judging. In fact, it might even be appropriate to take positive steps to ensure such diversity. I see this in the cybersecurity field. Consider this post from Gene Spafford where he says: “If you are invited to speak or appear on a panel at an event, ask who else has been invited. If they don’t seem to have invited (m)any women, suggest some and don’t agree to speak until they filled out the roster a little more. I have heard one good rule of thumb (which I try to follow) is not appear on a panel unless at least one woman is also on the panel. Help give other voices a chance to be heard.”
So, here’s the diversity question with respect to judges: When is it right to support a candidate, who might be less qualified, in order to improve the diversity of the courts? Given two equally qualified candidates, how does diversity play into your decision?
Issue #2: Temperament. We’ve heard the temperament word a lot this election, especially with respect to Donald Trump. But here, we’re talking about judicial temperament. According to the American Bar Association, judicial temperament means that a judge exhibits “compassion, decisiveness, open-mindedness, sensitivity, courtesy, patience, freedom from bias and commitment to equal justice.” In this particular case, we’re exploring the “freedom from bias” aspect. This is something I run into where I work, where we have a strong emphasis on objectivity and ethics. We’re not allowed to accept anything above a nominal value from contractors, and we’re supposed to keep sensitive information sensitive. In the two cases below, you’ll see two questions of judicial temperament. One is a candidate who did a lot of fund-raising: does that raise questions of freedom from bias if those from whom funds were raised come to court. The second is a candidate who has a blog, and has sometimes blogged on court related issues, but never about specific cases.
So, here’s the temperament question: What behavior in this area is sufficiently significant to drop them from consideration as a candidate.
So, with the background laid, let’s reconsider the two offices in question:
What I had originally: This is an office where both candidates are rated as qualified, making the choice harder. The Times, during the primary, endorsed Townsend. I supported neither then, supporting a friend, Aaron Weissman. Perez was a prosecutor. Jung was a deputy DA. Both graduated from UCLA. One went to Whittier School of Law, the other to Loyola Law School. Both have strong endorsements. I don’t think we would go wrong with either candidate. Further, both are minorities. I’m just going to lean to the side of Townsend, solely because we need to support more women in the judiciary.
Update: After some Facebook comments, I’m reconsidering my choice on this office. First, both candidates are rated as qualified. Townsend, evidently, has done a significant amount of fundraising. This has led some to question her temperament. We do not know how she would react if one of her backers came in front of her on a case. Would she recuse herself?
The second question has to do with the makeup of the court. According to the LA Times in 2013, “The legislatively mandated report by the Administrative Office of the Courts, the bureaucracy that runs the state court system, found that 31.3% of California judges at the end of 2012 were women, up from 27.1% in 2006. Ethnic groups also increased their representation, but they continued to be underrepresented compared with their proportion of the population, the survey found. Latinos accounted for 8.3% of state judges in 2012, up 2 percentage points from six years earlier, the largest gain of any minority group. About 6.5% of California lawyers are Latino, and Latinos make up nearly 38% of California’s population. African Americans, who make up 7% of the state’s population, accounted for 6.1% of the judiciary, up from 4.4% in 2006. Nearly 6% of state judges identified as Asian, up from 4.4%, the court system found. Asians represent nearly 16% of the state’s population.”
Update 10/10/16: A comment was sent to me with a link to the Metropolitan News’ background piece on the candidates for this office. With respect to Perez, it notes:
He received his undergraduate degree from UCLA and his law degree from Whittier College School of Law. After gaining admission to the State Bar in 1990, he became a deputy district attorney. For several years, he was deputy-in-charge of the District Attorney’s Office East Los Angeles, and since April 1, 2013, has been deputy-in-charge of the West Covina office. He is at Grade IV, the highest level below management. His latest annual performance evaluation, for 2014-15, says he “Exceeded Expectations (Very Good).” He received that rating in three of the four evaluations immediately preceding, with the 2012-13 evaluation finding he “Met Expectations (Competent).” [Perez says] “he hopes to be a judicial officer who will “make sure that justice is done in court.””
With respect to Townsend, it notes:
“Her credentials for office include graduating with honors from Loyola Law School; having been a deputy district attorney for more than 17 years; and having tried more than 50 cases before juries, and handling thousands of preliminary hearings. She has attained a level of Grade IV. In her last three annual performance evaluations, she was found to have “Met Expectations,” which is defined as “Competent” [..]”
Reviews from judges cited for Townsend give the impression of a hard worker, fine reputation, “she’ll be a fine judge” and she may not do anything impressive. What type of judge does Townsend want to be? She says she will she would emulate George Lomeli, who presently sits in the Clara Shortridge Foltz Criminal Justice Center, and try to avoid resembling a judge “who rules from arrogance,” fails to show respect to those in the courtroom, and “does not read the motions.” She describes Shortridge as “the consummate professional […] very fair to both sides [who] exudes that calm experience, balanced temperament, that both sides, whether they’re defense or prosecution, would want in a judge.”
So, we have two equally qualified candidates. A potential (but likely minor) temperament issue. Equal prosecuting skills. Slightly different drives and goals. Who do we recommend for advancement: the woman or the Hispanic? Which is better for the diversity of the court?
I investigated, but was unable to find the current diversity of the court, or a comparison to the county population at large.
Right now, I’m still leaning towards Townsend, the woman, but could easily be convinced to go for Perez to improve Hispanic representation. The Times wrote of Townsend: “despite 17 years on the job she is not the one with the most experience. But she is the one whom many defense lawyers told the Times possesses the most integrity and the best judgment.” Yet the same endorsement said nothing about the strengths or weaknesses of her opponent, Perez, and he has an equally impressive list of endorsements. The Metropolitan News also endorsed Townsend, noting: “Perez was imbued by his parents with a deep-seated work ethic. Highly industrious and able, he is entrusted with heading operations of his office in Covina, the busiest court in the county. Notwithstanding that she is less experienced than Weissman or Perez, our choice is Townsend. Poised, intelligent, skilled in communicating her thoughts with precision, we believe she would excel as a judge of the Los Angeles Superior Court. We discern definite potential on her part for higher judicial office. While we endorse Susan Jung Townsend for election to the Los Angeles Superior Court, we endorse Weissman [a candidate from the primary] and Perez for appointment by the governor.”
Basically, it looks like you won’t go wrong with either candidate. Both would be great for the court, and bring slightly different experiences, resumes, training, and ambition to the court. They also bring different types of diversity.
What I had originally: The two remaining candidates are Nguyen, who is rated well-qualified, and Berger, who was rated non-qualified. Back during the primary, I wrote: “The Times explicitly disregards the NQ rating and recommends Berger. Additionally, someone has domain-squat the Berger for Judge domain and put up a blog advising folks not to vote for him. It has a private registration, so it isn’t easy to find out who is behind it. Metropolitan News has a good background piece on Berger, and it looks like the NQ rating, as well as the website, are the work of parties or parties offended by Berger’s Blog. I was going to lean towards a WQ candidate, but I think I need to stand up for a blogger. There’s something fishy in the NQ rating, given the endorsement.” The Times reiterated their endorsement. I think that’s lazy. Rethinking the issue, I think I’m going for the well-qualified candidate.
Update: After some Facebook comments, I’m reconsidering my choice on this office. I did some further investigation into the qualifications of David Berger, and more importantly, why he received the rating he did and why the Times ignored it. I suggest you review his blog (which he hasn’t updated since July). In his most recent post, he explored how the titles candidates choose can influence the votes they get. Reading back further, he has a lot of posts regarding the candidates for the judicial offices (comparing them, and always disclosing he is a candidate). He has also explored the timing of judicial office openings and retirements, the politics of the Association of Deputy District Attorneys (ADDA), and going back even further, potential abuses of former District Attorney Carmen Trutanich. It appears that some of these posts, while not having to do with matters related to court conduct, trod a little close to some toes.
Let’s now explore judicial ratings. They come from the LA County Bar Association (LACBA), which is a fee-based membership organization. Membership is not required, unlike the State Bar Association or the ADDA. Historically, LACBA has provided a useful rating of judicial candidates through their JEEC – the Judicial Elections Evaluations Committee. The Times often follows the JEEC’s evaluation in making their endorsements, because for the most part, the JEEC is impartial and researches the candidates thoroughly. Sometimes, it is unclear if it actually has worked that way. I noted that in my comments in the primary. Research has uncovered the reason for the tentative NQ rating was “temperament and demeanor in the context of political activities evidences a lack of the temperament necessary to perform the judicial function satisfactorily.” Translation: Blogging. So did the level of Berger’s blog rise to something that would violate the definition of judicial temperament? From my reading of his blog, I don’t think so. Further, there is the whole question of freedom to speak, and the balance of that with work. Reading through his blog, I saw no evidence of discussions the work of his office, his cases, or anything of a sensitive nature. There is always a clear separation between the courtroom and the blog. Was this sufficient evidence for an NQ rating, or was something else at work. I’ve heard suspicions and connections, but there is no published proof. We, as voters, do not know. We do know that whatever it was, it was such that the Times and the Metropolitan News (a legal publication) felt that rating sufficient to ignore.
Note that this question — of blogging — may be encountered more and more as millennials run for office. The up-and-coming generation tends not to show restraint online, and to forget that what one writes is easily discovered.
Now, let’s look at the actual experience of the two candidates. The Metropolitan News background piece on Berger is one place to start; it is also useful to read their background piece on the other candidate (that later piece is also useful because it indicates, from one of the candidates knocked out in the primary, the concerns about the blogging — and potentially why they are spurious concerns). It is also useful to look at the Voters Edge page, and look at the relevant experience. It is clear to see that Berger has significantly more judicial experience, where as Nguyen has no actual judicial experience.
Here’s what the LA Times wrote: “He has a long and successful record as a prosecutor, and his free expression of opinion in that capacity do not make him less fit to serve impartially as a judge. Deputy Attorney General Kim L. Nguyen is keenly intelligent and capable and would also make a good judge, but could benefit from another few years of experience before taking the bench.”
So, here’s where we come back to the diversity and temperament questions: Is the diversity of the court such that it is worth promoting the less experienced candidate to get better representation for Asian women on the bench, over the more experienced white male? Does expressing opinions on a blog make you unfit as a judge?
I think, in this case, experience may win out. There is a reason that both papers went with Berger, and there was a reason I leaned towards him in the primary.
☑ Conclusion: David A. Berger
So, after all of this, what can we learn: Even the most minor of offices can raise interesting questions, when you start looking at them. An informed electorate is a responsible electorate. That’s why I take the time to do these write-ups.