At the same time President Trump barrages federal judges with withering attacks, as he himself might describe, “the likes of which have not been seen before,” a Democratic member of the California State Assembly is proposing a state constitutional amendment to limit our right to vote for justices on the State Supreme Court and appellate courts. The efforts are not connected but both weaken our democracy.
President Trump’s war on judges includes unprecedented reliance on executive orders, claiming courts have no jurisdiction over a president’s actions, ignoring court orders adverse to the administration’s position, and threatening impeachment of judges who rule against the administration. In response, U.S. Supreme Court Chief Justice Roberts has gone public in defense of the judiciary while retired judges in California have spoken out for understanding of the role of judges in our legal system. But their job is more difficult when average people can’t name judges or describe what they do. In California, a proposed state constitutional amendment coupled with existing practices that shield the selection and retention processes may worsen things.
California Constitution Article VI, Section 16 commands that state judges shall be elected. In reality, the vast majority of judges make it to the bench not because of the voters but by appointment from the governor in a process largely outside of public view. After appellate judges are appointed for their first term, voters are asked whether they should be retained for additional 12-year terms. Superior Court judges get on the bench the same way but for six-year terms and do not have to face the voters unless someone runs against them.
Assembly Elections Committee Chair Gail Pellerin has introduced ACA 8, which proposes to take away retention elections for the California Supreme Court and appellate courts unless an unspecified number of California voters submits a petition to have an election. Our right to vote on judges should not depend on a small group of unknown people.
Retired judges have spoken out for understanding of the role of judges, but that’s difficult when average people can’t name judges or describe what they do.
Pellerin argues that voters don’t know the judges and get confused and that her amendment would save money. But we need more democracy, not less. The way to address lack of voter information about judges is to provide it, not take away our voting power. In 2023, Stop Crime SF, a local advocacy organization, asked the 14 San Francisco Superior Court judges who filed for reelection for what criteria they believed was fair for voters to base their vote and for a copy of what they provided the governor that explained the reasons they thought they should have been appointed in the first place. The judges unanimously refused. But in January 2024, the judges up for election provided these answers to a confidential panel of the local bar association that operates in secret to evaluate the judges. The judges then used these favorable evaluations in their campaign literature.
Hiding things invites suspicion, especially in a public process. We’ve elected judges in California since the 1800s although often they are first appointed by the governor to fill a vacancy when it occurs between elections. As part of the process, the governor gets advice from eight regional panels. Sixty-four percent of panel members are already judges and the rest are lawyers. By statute, the governor sends names of individuals he would like to nominate for judge to a state bar commission (the Commission on Judicial Nominations Evaluation). This commission is dominated by lawyers (80 percent) with some “public members” who are selected by the bar based on their “professional experience.” These panels have 90 days to interview the potential nominees and review their questionnaire answers, ask people in the legal community about them and send an evaluation to the governor, all confidentially. State Bar Rule 7.7 authorizes the commission to take input but only from local bar associations whose views they have asked for and who have done their own evaluations.
The public gets to know who has been appointed only after the process is over. Once that judge’s term of office ends, the public gets to vote only on those judges who have an election opponent. If no one files to run against an incumbent judge, the judge is deemed elected for another term. In short, while the state constitution states that “superior court judges shall be elected,” a superior court judge can go an entire judicial career without any election whatsoever.
The legislature should make the judicial questionnaire a public document and give the public 30 days to comment on the candidate the governor intends to nominate. Federal court nominees’ questionnaires are public. Insiders and supporters of the individual seeking appointment already know about it because they’re often asked to call or write the governor in support. California voters deserve that same level of consideration. Both advisory panels need to include more non-judges and non-lawyers and consider community credibility not just “professional experience” when they choose panel members. The people on these panels work hard, of course, but could benefit from greater public input beyond the designated bar associations.
The imperative of judicial independence and impartiality need not be compromised by greater public access to the appointment process. Terms for appellate judges are 12 years. By making elections for another term optional, ACA 8 puts even more distance between the voters and the judges. When that happens, judges become isolated and more susceptible to attacks from politicians.
