A Very Special Rejection of Electing Judges: The Case of Michael Nava in San Francisco

Carole Migden, who used to be a progressive San Francisco supervisor and state assembly representative with a base in the Harvey Milk-Harry Britt anti-machine insurgency, and who was always ruthless and extremely self-serving, somewhere along the line, embraced and was embraced by the Burton-Brown (now Pelosi) machine before her one term in the state senate. She was outraged that term-limited supervisor Mark Leno dared to run against her in the 2008 Democratic primary and even more miffed that he won and deprived her of a second California Senate term.

Although I voted for her for four different offices, I have not voted for her the most recent two times she has been on the ballot. Alas, she was elected to the San Francisco Democratic Central Committee recently without my support. I have no doubt that she is sincere in her belief that once someone (like, say Carole Migden) is in office - elected or appointed - he or she should not be questioned or opposed. Perhaps she also believes in "judicial independence," and whatever assent to democracy she once may have had ceased with her 2008 primary electoral rejection.

Be that as it may, judges in California have to face elections. Judges do not continue by Divine Right to rule; California judges do not have lifetime appointments as federal ones do.

Migden carried the bucket of bilge for incumbent protection for a cabal of good old (white) boys orchestrated by presiding state Court of Appeals judge J. Anthony Kline and presiding San Francisco Superior Court Judge James McBride. I do not doubt that each of them believes judges should not be voted out of office and that they themselves should have to be elected to continue in their offices. The judges engaging in political action of the most nefarious back-room cabal sort by calling a conclave in the law offices of Pillsbury, Madison and Sutro, the whitest of whitebread establishment law firms in San Francisco in early July.

The cabal included gay San Francisco Superior Court Judge Kevin McCarthy, who successfully ran against an incumbent judge himself, but like Clarence Thomas, beneficiary of affirmative action who now opposes affirmative action, wants to close the door behind himself. Diversity was a valid goal when it came to electing another Irish politico, in his view, but not for a gay Latino. In Tim Redmond's blog account of the 7/7 meeting, Nava pointed out that by the court's own statistics, 70 percent of the judges are white and most have been appointed by Republican governors.

Another irony (or hypocrisy for those preferring plainer speech) is that judge in this election, appointed less than a year ago by Republican Governor Arnold Schwarzanegger has the endorsement of the San Francisco Republican Central Committee. In very Democratic-registration preponderant San Francisco, Ulmer has not refused that endorsement, even as a campaign for "judicial independence" has been waged to rescind the DCCC endorsement of Nava.. A Democrat independent of the Burton-Brown-Pelosi machine is not the kind of "judicial independence" that Carole Migden and State Democratic Party Chairman John Burton (for whom I voted many times, btw) want in their fiefdom. Better a Republican than a genuinely independent Democrat, seems to be there stance.

In a three-person race in June, Nava received more votes than Ulmer, but not a clear majority, so there is a runoff in November. Despite intensive lobbying by John Burton and the exertions of Carole Migden, the DCC with newly elected members did not rescind its endorsement at its 8/11 meeting. Following an impassioned speech by Mission District Supervisor David Campos in defense of the Nava endorsement, Migden's ended up being the only vote for a re-vote (though her motion to revote on the endorsement was seconded by newly-elected member Bill Fazio, an attorney).

With hotly contested elections against Republican multimillionaires who have already poured in vast sums of their own money for California governor and a US Senate seat I don't understand why John Burton devoted time and energy to trying to have a recent Republican appointee to a local judicial office. There is an election and the incumbent (of brief incumbency) judge received fewer votes than a challenger who worked as a prosecutor in LA and has more extensive experience of California courts working on the staff Justice Carlos Moreno at the California Supreme Court than Ulmer does in the few months since his appointment.

A comment on the Bay Guardian blog laid out what I consider the case for electing Nava:

"We have a system that allows for the election of judges. I'm not convinced that it's necessarily the best system, but it's what we have to work with. As such, my duty as a voter is to cast my vote for whomever I think will be the best superior court judge. That will be Nava. It's not because he's gay or Latino, it's because he's the better candidate. This is a guy who took his Stanford J.D. and worked as a prosecutor in L.A. instead of settling for a six figure salary at a big firm. Ulmer, on the other hand, took his Stanford J.D. straight to a series of big corporate law firms. There's nothing wrong with that, but for a judge I value Nava's experience in a City Attorney's Office and in private practice at a seriously intense boutique litigation firm over Ulmer's more thin experience at large corporate law firms. The strongest element of diversity that Nava brings isn't his race or sexual orientation, it's his experience working in a wide range of legal contexts."