Legal Brahmins organize against Nava

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Some of the most prominent lawyers in San Francisco, including two high-ranking judges, have launched a full-scale political campaign to protect Judge Richard Ulmer, a straight white former Republican and Schwarzenegger appointee, against a challenge by a gay Latino Democrat.

Among the Ulmer supporters, who have vowed to raise a substantial amount of money for the fall judicial election, are J. Anthony Kline, presiding justice of the state Court of Appeal in San Francisco and James McBride, presiding judge of the San Francisco Superior Court. They’re joined by a surprising number of leading liberal lawyers, including James Brosnahan, senior partner at Morrison and Foerster, Joe Cotchett, the widely known trial lawyer, and Sid Wolinsky, a founder of Disability Rights Advocates and a lifelong public interest attorney.

And John Burton, the chair of the California Democratic Party, is contacting members of the San Francisco County Central Committee to try to get that panel to rescind its endorsement of Ulmer’s opponent, Michael Nava.

It is, by any standard, an astonishing amount of political firepower for a local judicial race – and it’s all being done in the name of avoiding politicizing the judiciary.

Nava, a former prosecutor who now works as a staff attorney for state Supreme Court Justice Carlos Moreno, finished first among three candidates in the June primary election, and will face Ulmer in a November runoff. Nava finished with 45 percent of the vote, Ulmer with 42. Dan Deal, also a gay man, won 11 percent of the vote, and most observers agree that if he hadn’t been in the race, Nava would have exceeded 50 percent of the vote and won the seat outright.

So Ulmer heads into the fall with a significant disadvantage -- Nava needs only another five percent to put him over the top, and has the endorsement of the local Democratic Party, a major factor in a race that typically doesn’t attract much public attention.

That, by all accounts, has given the local judiciary a bit of a scare. Judges by law serve six-year terms, and can face a challenge when they come up for election, but it doesn’t happen often. And there aren’t many elections for open seats. That’s because the vast majority of Superior Court judges retire or step down in mid-term, giving the governor the opportunity to appoint somenone to the post.

And judges typically don’t like running for re-election; it forces them to raise money from people who might appear in their courtroom and makes them get out and about and glad hand in the community -- something that isn’t a normal part of a judge’s life.

Ulmer’s only been on the bench a little more than a year, and hasn’t done anything unprofessional or inappropriate; most attorneys who’ve appeared before him consider him an honest, competent judge. But he was appointed by a Republican governor to a bench that critics say is not reflective of the diversity of San Francisco, and if a local Democrat can unseat him, a lot of other judges could be vulnerable.

That’s what drove McBride, who told me he normally avoids politics, into the fray. Early in July, McBride sent an email to every past president of the Bar Association of San Francisco, inviting (some would say summoning) them to a July 7th meeting at the law office of Pillsbury, Madison and Sutro. The tagline talked about the “independence of the judiciary,” but the event turned out to be something of a pep talk and rally for Ulmer.

According to several accounts, Kline made the main pitch: He called this a “game-changing judicial election,” and made the arguments he would publish two days later in an opinion piece in the Recorder, a legal newspaper.

“The unseating of Judge Ulmer, widely considered an outstanding judge, would have a far greater politicizing effect than many realize,” his piece stated.

He added:

“If challenges to sitting judges without regard to their competence and character become acceptable in California, the consequences for our judiciary will be transformative. Exceptionally able but politically inexperienced lawyers will be less likely to seek judicial appointment. Lawyers who do seek appointment might feel it necessary to seek and obtain the political support of well-financed or influential groups, which may want to know where they stand on issues courts decide. Governors will favor judicial candidates possessing the political skills and financial resources necessary to defend themselves. Some judges may think twice about ruling against politically influential parties, lawyers, or interest groups. Judges may establish campaign funds to discourage potential challengers, and lawyers who appear before such judges may feel compelled to contribute.”

And in a move that disturbed some of those present, Kline argued, in essence, that the local court already has considerable diversity, and that the fact that Ulmer is a straight white male shouldn’t be an overriding factor in the race.

“With the election of Linda Colfax,” his Recorder article states, “25 of the court's 51 members will be women, 10 gay men or lesbians, 9 Asian-Americans; 3 Latinos; and 3 African-Americans. The court must already be the most diverse in the United States.”

McBride told the group that Ulmer would need money -- substantial sums of money -- to compete against Nava, and made it clear that he needed help raising it. According to some accounts, there was discussion of seeking a war chest of $350,000. The presiding judge also asked the former bar presidents to sign a letter asserting that the election of Nava would be an attack on the judiciary.

Peter Keane, dean emeritus of the Golden Gate University Law School, was among those invited, and the meeting left him deeply disturbed. “It was something disgraceful, the tone of opposition from people like Kline,” he told me. “It felt like a Dick Cheney weapons of mass destruction speech, this fear about the independence of the judiciary. I raised my hand and said I disagree.”

Keane said that “to frame this as an independence of the judicary question cheapens that argument.” Nava, he said, has every legal right to run and make the case that he’d be a better judge than Ulmer. “Ulmer’s been endorsed by the Republicans,” Keane said. “So what’s wrong if Nava is endorsed by the Democrats?”

Keane said he’d voted for Ulmer in June, but was switching to supporting Nava this fall, in part because he sees a powerful attack coming down against the challenger. “A lot of Brahmins in the legal society have gotten stampeded into the lynch mob against Michael,” he said.

In the end, the bar presidents agreed to what Keane called a mild statement saying that party affiliation shouldn’t be the sole basis for making judicial election decisions.

Kline, a former judicial appointments secretary for Gov. Jerry Brown who is widely considered one of the most liberal judges in the state, told me that he barely knows Ulmer, but knows of his pro bono work cleaning up the California Youth Authority. But he said he will continue to speak out for the incumbent because he fears the election of Nava would open the floodgates to challenges against judges on purely political grounds.

McBride confirmed that he called the July 7th meeting and was happy to discuss what happened and his perspective. He told me that it’s difficult and often inappropriate for judges to raise money for campaigns, since the people most likely to be interested in those races -- lawyers -- often have business before the courts. And he argued that the fear of a challenge could make judges hesitant to rule against powerful interest groups.

“One of the things that came up at the meeting,” he said, “is that judges are the only public officials who are required by the Constitution and their oath of office to act against their constituents.”

But Nava points out that state law provides for judges to face the voters -- and potential opponents -- once every six years. “This is simply the judges trying to establish standards for the voters to decide when and under what circumstances a judge can be challenged,” he told me. “They want to decide what qualifies someone to be a judge and what doesn’t.”

He said that the argument that the court is already diverse is “offensive.” The court’s own statistics, he noted, show that 70 percent of the judges are white and “most have been appointed by governors of a particular partisan and ideological bent.”

That, of course, is one reason Nava is running against an incumbent: He thinks (probably correctly) that Gov. Schwarzenegger would never appoint him to the bench, and unless Jerry Brown wins this fall, he’ll be essentially unable to become a local judge for years. Of course, if more judges retired at the end of their terms, and create more openings, there’d be less of a problem; lawyers who want to ascend to the bench would have a fair shot at running without taking on any incumbents.

Nava agreed that it was unpleasant and unseemly for judges, or judicial candidates, to go around raising money -- but he thinks there’s another solution. “Why don’t they work to make all judicial campaigns fully publicly financed?” he asked. “If Justice Kline wants to do that, I’ll be happy to join him.”

Although McBride said he hopes the Ulmer campaign will be able to raise enough money to reach the voters directly this fall, the focus right now is on the DCCC. “Since the Democratic Party is so dominant in this town, having the endorsement of the party shifts the balance way towards Nava,” McBride told me. Everybody knows the party won’t endorse Ulmer, who was a Republican until he was appointed to the bench, at which point he switched his registration to decline to state. But McBride hopes enough DCCC members will agree to reverse the Nava endorsement to leave the local party neutral in the race.

That’s going to be difficult – it takes a two-thirds vote to change an endorsement. But Ulmer supporters are pulling out all the stops – Burton has written a letter, prominent local lawyers who support Ulmer are calling DCCC members,  and in some cases, cornering them in person.

“I was at an event the other day, and Joe Cotchett comes up and tells me he needs to talk to me,” DCCC member Alix Rosenthal told me. “He corners me and starts talking about how I need to reverse the endorsement of Nava.”

And the power of the Brahmins seems to be having at least some impact – a few of the members who supported Nava in the spring appear to be wavering, and some newly elected progressives are still undecided.

Reversing an endorsement would be highly unusual. “I’ve never seen anything like this done in my eight years on the committee,” member Gabriel Haaland told me.

But no matter what happens at the DCCC in August, when the issue will come up, the relatively low-profile race for Superior Court judge is going to get heated this fall – and Nava will be in the crosshairs.