After Uproar Over Judicial Candidate’s Facebook Posts, A Law Professor Weighs In
Wednesday, February 26, 2020
Credit: Photo: Matthew Bowler; Inset: San Diego Democrats for Equality
Despite judges wielding great influence over society, most voters know next to nothing about the judicial candidates elected to seats on county superior courts.
But one judicial candidate in the March 3 primary has made news with his sharing of Facebook posts that, among other things, are racially charged and have anti-immigrant and transphobic themes.
KPBS recently spoke to California Western School of Law Professor Emeritus Jan Stiglitz about McMillan, what makes a good judge and whether judges should even be elected. The interview has been edited for length and clarity.
Q: San Diego County Superior Court judicial candidate Shawn McMillan has shared controversial posts on his Facebook page. One advocates arming all Americans. Another states President Trump replaced a racist president, referring to Barack Obama. Still another suggests stopping welfare to illegal aliens as a way to get them to self deport. And one shows pictures of Monica Lewinsky, former NFL player Colin Kapernick and Senator Kamala Harris along with the caption, “When nobody knew who you were until you got on your knees.” Political candidates make incendiary comments all the time, but what about judicial candidates? Should they?
A: No, except that it gives you a window into who they are and actually exposes why they are unqualified to be on the bench. What you need in a politician, an elected representative, is a point of view. It’s an agenda. It’s a plan for policy change. You don't want that in a judge. A judge is supposed to be neutral. A judge is not supposed to be prejudiced. A judge is supposed to have an open mind and treat people with respect. And when someone walks into a judge's courtroom, they want to know that the judge has not prejudged them or prejudged the issue they're bringing before the court. So when you have a candidate like this, who makes a comment about how there are only two genders, who may never have had a case involving gender discrimination and seeing research and science on it, that judge is not perceived as coming in with an open mind.
Q: Judicial candidate Shawn McMillan told me in essence, “Look, had I known at the time that I would be running for judge, maybe I wouldn't have shared these posts. I would have been like the other candidates and kept my views hidden and left everybody guessing.’ Is there an upside to his candor about his political and social views?
A: Yes, because we know more about him and we know he has some very strong views on some very controversial topics, which gives us a reason to suggest that he may not be a good judge. And it's ironic that he may have been a better candidate if he had hidden that from the public. One would hope that … those views would come out even if there weren't Facebook posts. (They would come out) based on what's known by the legal community about what they've said and what they've done over the course of their careers prior to seeking election,
Q: The San Diego County Bar Association judged McMillan to be lacking qualifications, but they didn't say why. Should they have?
A: It would have been helpful because we don't know whether, like me, they found him unqualified because he seems to have prejudged very serious issues and wouldn't be fair and respectful of everyone who came before him. It could also be for other reasons, like he lacked a legal background (or) he may have taken actions as a lawyer that suggest he is not the kind of person who you want on the bench. We don't know. It would have been helpful to know.
Q: Where do you stand on the issue of judicial elections? Should superior court judges be appointed or should they run?
A: I much prefer the appointment system. I know every election time I get calls from friends asking, `Do you know any of these judges? Who do you think I should vote for?’ I've been involved in the San Diego legal community for 40 years and half the time I don't know all of these judges. I do know that when the governor is ready to appoint someone, there's a very intensive vetting process and a commission set up to seek input and give a good evaluation of prospective judges. So I actually trust gubernatorial appointments more than I do the election process.
Q: Most people don’t pay much attention to judicial races, but how important are judges to people’s lives?
A: They're extremely important. If you believe that your rights have been violated, whether it's a merchant who has cheated you, whether you've suffered a severe accident, whether there's been discrimination in the workplace, you want to know that there's a judicial system that will give you a fair opportunity to be heard. And the higher up you go in the court system, the more important it is to have good judges.
Q: The California Supreme court is mulling over whether to allow sitting judges to openly oppose judicial candidates. Is that a good idea?
A: I would oppose that idea. While I recognize that there is some value to learning something about a judge by another judge, I think on the whole, the less judges say about their feelings on issues and on individual judges, the better off we are.
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