I’ve been torn, but Reid Hoffman makes a persuasive argument for recall. There’s no question that Judge Persky made an absurdly poor sentencing decision. Brock Turner committed rape, a terrible crime, and the sentence imposed on him was not only unusually lenient in a way that can only be explained by his privileged circumstances, but was expressly justified by the judge on grounds that have no place in a system that aspires to impartial justice.
The reason I was torn about recalling Judge Persky is because going after judges for bad decisions tends to weaken judicial independence — the idea that judges must be unafraid to make unpopular decisions, when law and constitution require it. Judicial independence isn’t always a great thing (I’m looking at you, Bush vs Gore), but a lot of important social progress has taken place via judges making hugely unpopular rulings, from school desegregation to criminal defendants’ rights to Roe vs Wade. More recently, consider Mississippi Judge Carlton Reeves’s pre-Obergefell ruling that his state’s overwhelmingly supported ban on gay marriage was unconstitutional; thanks to the lifetime tenure of federal judges, he didn’t have to fear losing his job as a consequence. When judges have to worry about getting fired — or more generally, when they have to run for reelection — they become disinclined to make rulings that provoke popular opposition. And in our system of appeals courts, judicial disciplinary bodies, and legislative impeachment procedures, we have a range of mechanisms for fixing errors and removing bad apple judges. Those, anyway, are things I learned in law school and still take to heart.
But the case for judicial independence doesn’t mean that state court judges should be insulated from all public judgment, especially where the state elects its judges and provides a popular recall procedure. Limited to cases of rare importance or severity, it’s appropriate to put recall to use. And Reid lays out a compelling argument for recall in this case: that Judge Persky’s bad behavior goes beyond one grossly wrongheaded sentence, and embodies an unacceptable pattern of “questionable judgment in cases involving violence toward women.”
We need systematic reforms to combat systematically tolerated and excused sexual violence against women; recalling Judge Persky would be a powerful step in that direction.