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.

Comments

1. Nava's qualifications are being gay and Latino, and he is for public funding of elections to advance his carer.

2. In politics the progressives like Tim have more of an obsession with race and sexual preference than all but the most crazy right wingers. It's a qualification for office for for people who think that race and sexual preference shouldn't matter?

3. Any lawyer who wants to be a judge should get to be one, it's hurtful to lawyers if they want to be judges and can't be. We don't want to hurt the feelings of people who feel entitled to something. I want to be an astronaut or a brain surgeon.

Posted by matlock on Jul. 30, 2010 @ 2:10 pm

I wonder how many of those who criticize Michael Nava's candidacy participated in the political lynching of state Chief Justice Rose Bird.

Posted by Gino Rembetes on Jul. 30, 2010 @ 5:05 pm

Anthony Kline-can you beat that. Former far left party member and professor of progressive part of School of Criminology at UC berkeley in the 70's. I guess that is how the worm turns.

Posted by Guest Catherine Cusic on Jul. 30, 2010 @ 5:15 pm

Catherine Cusic: what far left party are you referring to?

Posted by Guest the red one on Jul. 30, 2010 @ 6:59 pm

Ummm.... so to avoid politicizing the race the folks who want to keep the old-guard straight, white, male Republican are putting huge amounts of political pressure and raising lots of money.... So how is ramping up the politics supposed to keep this from being political?

Posted by Jack Fertig on Jul. 30, 2010 @ 7:52 pm

Forget about gay and latino. Michael Nava's sin is that he's going to crack open the good 'ol boys club and shine a bit of light on the inner workings of the judiciary. We *NEED* someone like that.

Of course the establishment is circling the wagons. What surprises me somewhat is that some Democrats, ever the party dogs when it comes to supporting some quasi-Republican like Newsom, have absolutely no shame in going to bat (and twisting arms) for a Republican. Oh -pardon me -DTS. Yeah right! If Ulmer is an independent, then I'm the Queen of England. He's a Republican who gave money to Republican candidates. He changed to DTS because you can't get elected as a Republican in San Francisco. Dishonesty with the voters- yet ANOTHER reason not to vote for Ulmer.

If any progressive Democrat votes to rescind that endorsement of Nava, they have NO BUSINESS being on the DCCC.

It's time the good 'ol boys came to grips with the fact that we (supposedly) live in a democracy. The law says that we get to vote. But voting is meaningless when there's only one candidate. We need AGGRESSIVE challenges to all incumbents so that there's a healthy debate on the issues. I'm SICK AND TIRED of voting in one-candidate elections where (surprise surprise) the incumbent always wins. What the hell is this anyway, the Soviet Politburo?

Posted by Greg on Jul. 30, 2010 @ 10:41 pm

We need to put the fear of god into conservative judges who ignore the letter of the law to protect the interests of landlords at the expense of tenants and free and fair elections are the only way to do that.

Posted by Guest on Jul. 30, 2010 @ 11:57 pm

Every renter knows that if an unjust or unlawful eviction goes before a local superior court judge the deck is stacked against them. Very often rental ordinances that win in local initiatives are invalidated by local judges.

Often laws protecting renters have to lose in local courts before they are upheld upon appeal.

The only way to eliminate elitist judges who represent the wealthy in SF is to terrorize them with the thought that they will have to run for re election.

The DCC needs to start showing some spine before it is too late. Seating Newsom last Tuesday was shameful and cowardly and in San Francisco cowards are evicted.

Posted by Guest on Jul. 31, 2010 @ 12:02 am

Ok, let's see if I've got this straight: there's an election for judge, but nobody can be allowed to win except the white male friend of the oligarchs.

John Burton, you are utterly disgusting.

Posted by Lucy Lucknow on Jul. 31, 2010 @ 11:33 am

I have worked in the legal sector in San Francisco for 35 years. I tread lightly in the area of judicial independence. However, judicial appointments are a political game as John and Tony know. That's how we ended up with all these republican judges in San Francisco. They don't want to mess with that and of course they think Jerry's coming. Their involvement in this has made it more political except not in the backroom but for their backroom dealings. Which candidate would you want judging your case? That is what it really comes down to. Let the best person win.

Posted by Mark on Jul. 31, 2010 @ 1:36 pm

there is nothing wrong with the present judge. If people think another judge would be better then vote for him.

But right off claiming that there needs to be more "diversity" in judges (as Tim did) at this point is probably more political than the old boy network.

Looking at Nava's history that I could find, I would prefer the incumbent. I couldn't find any complaints about some bias from the incumbent, Nava on the other hand is a diversity for diversity's sake type.

The reason that there are republican judges in the area is that we have had a lot of republican presidents and Guv's appointing them. It's odd that the stated goal of the two parties is less politics in judges, by appointing their own hacks.

Its interesting all the harping by the so called progressives over the federal prosecutor in SF hounding city employees over sanctuary law being a republican, then complaining that Arizona is breaking federal law. For progressives its about getting over, not an impartial justice system

Posted by matlock on Jul. 31, 2010 @ 3:28 pm
Posted by Mark on Jul. 31, 2010 @ 3:44 pm

I stand by my statements.

Posted by Mark on Jul. 31, 2010 @ 3:53 pm

People should also take into account the self serving nature of progressive politics, along with the rights history of stupidity.

Nava's purpose is to be bait.

Posted by matlock on Jul. 31, 2010 @ 11:01 pm

"there is nothing wrong with the present judge. If people think another judge would be better then vote for him. "

Matlock, I have no problem with that way of framing the debate. If you're conservative and think that Ulmer is better, than vote for him. I disagree, and I'll be voting for Nava.

Not because of identity politics. I could give a rats ass about identity politics. But becuase I think he'll be a better judge, more in tune with the people of San Francisco who will be in his courtroom looking for redress. I think someone like Nava can better identify with ordinary San Franciscans who aren't part of the moneyed elite. If you don't agree, or don't think that's important, then fine. We can and SHOULD have that debate.

But what makes my blood boil is this elitist notion of entitlement on the part of incumbents.

Just who the hell do they think they are to suggest that no one should run against them? The fact that some failure of a governor appointed him in no way makes Ulmer better than anyone else. This isn't North Korea. This isn't the Soviet Union. In this country, we have elections so that people have a real CHOICE. Anyone who doesn't believe that -anyone who believes that they're entitled to a free ride without challenge is someone who shouldn't be a judge in the first place.

The fact that this kind of thinking permeates the elite judicial establishment is, in and of itself, proof that We The People need to take a huge axe and crack open that good 'ol boys club once and for all.

Posted by Greg on Jul. 31, 2010 @ 11:03 pm

...before the law.

If you are going to put your philosophy on top of bing an SF progressive, then what separates you from being a Kentucky republican? The law should be the same for us all, not you enlightened left wingers.

Your position from your post is that SF needs more lefty judges because the constitution is different here in SF.

The constitution is less important if you can rant about your ethnic make up?

Thank you George Wallace Guardian flunkies.

Posted by matlock on Jul. 31, 2010 @ 11:46 pm

You may disagree with the notion of elected judges, but as long as we have that system, it makes a complete mockery of democracy to suggest that no one has a right to run against incumbents.

No one is ranting about their ethnicity. Certainly not Nava himself. And as I explicitly stated, that is NOT why I am supporting him.

My position is not that the constitution is "different" in San Francisco. I don't know where you get that. What's "different" in San Francisco is that that constitution actually has a fighting chance. With the current Republican elite, the moneyed interests rule. If we have judges like Nava, I think poor people and people of color will actually have a fair chance in the courtroom. It is precisely BECAUSE I believe everyone should be equal before the law, that I am supporting Nava.

But again, this has become more than an attack on Nava. This has turned into an attack on democracy itself. I cannot get over the sense of entitlement of Ulmer and his surrogates. Even if I were initially inclined to support Ulmer, I wouldn't vote for Ulmer just for that!

The heavyhanded tactics prompted Peter Keane to change his support from Ulmer to Nava, and major kudos to him for doing that. As for myself, I was merely planning to vote for Nava, as I did in the first election. Now, I will be contributing money to his campaign. And progressive members of the DCCC who supported Ulmer in the first run (there were a few) will be hearing from me as well. Like Keane, they need to take a principled stand, because this sort of elitist assault on the very principles of democracy cannot be allowed to stand.

Posted by Greg on Aug. 01, 2010 @ 8:24 am

I'm with Greg. 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.

Posted by Guest on Aug. 03, 2010 @ 4:43 pm

In some ideal world where people have unlimited time and good sources of information to evaluate all the candidates and initiatives that clutter ballots, judicial elections might make sense. In reality, few people have the time, interest, or ability to make informed decisions about more than a handful of candidates or intiatives in any given election. I admit I'm guessing here, but I'd confidently bet that only a minuscule fraction of the electorate bothers to do its homework on judicial elections. Most of those who do vote in judicial elections vote on the basis of bumper-sticker slogans or political endorsements. That's a lousy way to pick judges, so I'd be more than happy to disenfranchise myself (and everyone else) when it comes to judicial elections.

Posted by Guest on Aug. 03, 2010 @ 9:26 pm