Trump University, The Stanford Sexual Assault Case, and The Importance of an Independent Judiciary

President Obama’s tenure has seen an alarming uptick in incidents that compromise the delicate relationship between politics and law.  Politicians and citizens of all political stripes have contributed to this uptick.  Most recently, the efforts to recall Judge Aaron Persky based on his sentencing decision in a highly publicized sexual assault case demonstrate how identity politics and emotional outrage can dramatically undermine our respect for an independent judiciary.


Judges have a difficult job.  Whether elected or appointed, judges must be responsive to the needs of the public while issuing rulings that are independent of crass politics, especially when interpreting constitutional rights (whose raison d’etre is to endure in spite of majority opposition).  Judges must issue principled rulings and honor the rule of law while appreciating the humanity of the parties before them.  This job is made even more difficult when politicians and citizens react with emotional outrage, unfounded accusations, and even threats to decisions they disfavor and lose sight of the precarious relationship between politics and law.

Politics has a place in law, which is why we elect some state judges and why the President appoints federal judges.  However, politics should not supersede informed, independent, principled jurisprudence and must not pervade every aspect of the judiciary.  President Obama failed to respect the cabined role of politics when using a State of the Union to unleash public outcry against the Supreme Court’s ruling in Citizens United, a difficult case about whether Congress can ban the airing of political speech produced by a non-profit corporation during an election.  Even worse, Republicans in Congress refused to even hold hearings on Supreme Court nominee Judge Merrick Garland, a respected moderate known for his sound, well-reasoned court of appeals opinions.

And, in one of the most stunning and brazen attacks on both a judge’s impartiality and our continued faith in an independent judiciary, presumptive Republican nominee for President Donald Trump argued that federal district judge Judge Gonzalo Curiel, whose parents are from Mexico, was unfit to hear a lawsuit against Trump University because of Trump’s political views on Mexican immigration.  When questioned about this accusation, Trump doubled down and claimed Muslim judges might also be unable to impartially rule in cases where he is a party.

Of course, a person’s background does influence his or her perspective  – consider the praise of the three female Supreme Court Justices who exposed the insanity of Texas’s onerous abortion restrictions during oral argument in Whole Women’s Health.  The influence of background is partially why a diverse judiciary is critical.  But that background is one factor among many when a judge undertakes her difficult responsibilities.  If we cannot allow judges room to render independent decisions without pre-judging their biases, and if judges face public threats based on rulings they believe to be correct, the important separation between law and politics will crumble.

Most recently, public outcry over the six-month sentence given to Brock Turner, the former Stanford swimmer convicted of three counts of sexual assault, embodies the loss of faith in our independent judiciary that further facilitates its demise.  Although the attempts to recall Judge Persky are distinct from Trump’s treatment of Judge Curiel, they display noteworthy similarities.  Judge Perksy’s sentence of Turner, while perhaps too short, has been cited as appropriate and completely lawful by many defense experts.  Judge Persky has been accused, on the basis of only this sentence, of giving Turner too much leniency because both he and the defendant are white men and former college athletes.  Judge Perksy has not demonstrated actual misconduct, but petitions to recall Judge Persky abound, and he has received numerous threats.  Jurors are also now refusing to hear cases in his courtroom.

The public should be involved in expressing its dismay with a judicial system that has historically been unkind to rape victims (although now reforms give these victims some procedural assistance that may actually compromise a defendant’s ability to have a fair trial).  Many of those reacting negatively to Judge Persky’s sentencing decision have been sexually assaulted themselves.  Further, critics are correct that our judicial system displays systemic biases in favor of white defendants.  There is a place for concern, and even righteous anger.  In the next judicial election, someone can run against Judge Perksy and cite the Brock Turner sentence.  This would cabin politics to a more fitting interaction with the judiciary.  But this recall goes beyond beneficial public response.  Projecting all of one’s preconceptions about our racist, sexist judicial system onto one judge, based on one sentence, because of his background, is a myopic move that has serious systemic ramifications.  Judges who live in fear of public outcry and public threats cannot perform their difficult jobs, and petitions to recall judges due to identity politics or outcry over a decision will not lead to better decision-making, just more political decision-making.

Just as Americans have faithfully bought into the principle (over politics and even over short term safety) that defendants are innocent until proven guilty, our faith in judges’ ability to interpret the law must prevail unless they are proven demonstrably unfit.  When it comes to constitutional rights, the relationship of politics to law, or even systemic reform, compromising higher order values like judicial independence and discretion for short-term gains is in no one’s best interest, and may not even serve the short-term goal.