The OC Bar Association’s Revealing Judicial Candidate Ratings — and I Make Up My Mind

Weighing Helen Hayden against Derek Johnson — and against abstaining — in Judicial race #20

The OC Bar Association rates the qualifications of Judicial candidates before every election.  For a list that simply associated one of four phrases with each of ten candidates, it says a tremendous amount very succinctly.  (Fans of this blog can just imagine how much I admire that.)

I’m focusing on judicial ratings in part because I want to encourage readers to go all of the way to the bottom of the ballot — and not really so much because that’s where you’ll find my own race.  I have my favored candidates in all races except one, but there’s only one race this year on the entire ballot where the result I oppose would strike me not only as a tragedy, but as a  travesty.  I want every reader, across and beyond the political spectrum, to stand in the way of that.

So let’s go to this year’s ratings and see why they’re interesting and important.  And then, after that, I’m going to empty the contents of my soul onto the page, so you might want to grab a beer and a mop.

1. The OCBA Ratings

Here’s  the entirety of this page: “OCBA Releases Ratings of Candidates Running for Judicial Office in June 3 Election”

As a public service to assist the voters in Orange County, the Orange County Bar Association (OCBA) has conducted a review of 10 candidates running for Superior Court Judge in the June 3 election. The OCBA considered each candidate to be given one of four ratings: “Exceptionally Well Qualified,” “Well Qualified,” “Qualified,” or “Not Qualified.”

OCBA RATINGS OF JUDICIAL CANDIDATES

The review of candidates was conducted by the Judiciary Committee of the OCBA, which is comprised of a diverse group of 34 attorneys, all in practice for at least 10 years. Each of the candidates was asked to complete a detailed questionnaire and to participate in a personal interview. The process for all of the candidates included independent review in order to reach the final rating. The Committee considers the character, temperament, professional aptitude, and experience of the candidates, without regard to political considerations. The OCBA does not endorse any candidate for election and provides this information as a public service.

For more information on the election, please visit www.ocvote.com.

As statistically minded readers will note, they used the entire four-point scale: one “Exceptionally Well Qualified” and one “Not Qualified,” as well as three “Well-Qualified” and five “Qualified” betwixt.  As with any grading scale, the message sent by some of the fine distinctions is more subtle and profound than you might suspect.

Let’s start with what I consider to be the most important race, in terms of pure justice, on the entire ballot.

2. A Recap of the Races

2A. Office 27: Motoike (Extremely Well Qualified) vs. Philips (Qualified)

If Joanne Motoike does not win reelection to this office, and win big, it will be just about the saddest commentary imaginable about Orange County’s electorate.  You need to get everyone you know to vote for her in this race to ensure that that doesn’t happen.  My conservative friends would, I expect, agree with me.  Her list of endorsers is ludicrously long and inclusive.  (From that link you can see the rest of her website as well.)

On the merits, there’s no contest here: unlike the other races where there is either one level of difference between the leading candidates or none, she is ranked two levels above her opponent — receiving the level of “the best we have in stock.”  Only four things might stand in the way of her election.

1. She was recently appointed to the bench by Jerry Brown
2. She worked for a long time as a Public Defender and for a shorter time as a war crimes prosecutor
3. She’s a woman
4. She’s of Japanese ancestry

Note that I don’t list any attributes of her opponent on the list.  Judging from his website, Wayne Philips  seems like a pretty decent guy — a longtime JAG officer, now retired, with clients and a penchant for disclaimers regarding his photos, and a rotation nice quotes on his home page from Lincoln, Aristotle, Cesar Chavez, Dr. King, and Einstein.  He doesn’t seem to be campaigning.  Most voters will know little or nothing of his or his opponent’s history.

The main blot I see on Philips’s character is this: of all of the judges against whom he could have run, he chose to attempt to unseat Judge Motoike.  I can’t look into his soul, but political strategists would likely agree that the most likely reason for the choice is somewhere between cynical and repellent: a candidate named “Wayne Philips” has a greater advantage over a candidate named “Joanne Motoike” than he would over an opponent named something like “Jeff Ferguson” or “Kevin Haskins” or even “Carmen Luege.”  But, in doing so, he chose an opponent who was “exceptionally well qualified” — and, from her background, pretty obviously so.

And it might work!  In Orange County, it may be that voters without knowledge of either candidate will vote for him over his opponent based on the masculine gender and ethnic familiarity of his name.  If that happens, it will be a terrible commentary on our electorate — far worse than anything that could happen in the most controversial of these four races.  You, Dear Reader, are one of the few who will read a story on these races; it’s up to YOU to help make sure that that doesn’t happen.

And the maddening part is that I’m not even sure how to tell you how to do it — except to implore you to spread the word.  Tell those around you: Judge Motoike is rated as as good as we have on the bench, while her opponent’s rating is second from the bottom.  Vote accordingly.

2B. Office 14: Jones and Haskins (Well Qualified) v. Martin (Qualified) v. Fascenelli (Not Qualified)

The two leading candidates are Kevin Haskins and KC Jones — whom, as you can see, both received the second highest ranking.  As five people were rated as merely “Qualified,” that seems to indicate something significant.  I still don’t know whether Thomas Martin is running a serious campaign, but he seems like a successful private practitioner and does have a website.

The surprise to me here is that the fourth candidate, Frederick Fascenelli, received the uncoveted “Not Qualified” rating.  I’m not sure what one has to do to receive that.  He doesn’t have a proper website, but he has a rudimentary Facebook page and a fundraising page and beat the Fullerton Police Department last year on what seem to be pretty legitimate grounds, hasn’t faced discipline and gave a credible speech (even if one not to my taste) at the sole event we both attended.  I don’t know if the low ranking supposedly represents the putrid presence of Bad or the abject absence of Good.  (I’ll bet, though, that that link to the Register article will win him the support of some FPD-hating voters here.)

As I’ve said, I’ll vote for Jones, partly because I prefer my Republicans from outside of Rackauckas’s DA office.  (And partly it’s that I really like what I’ve heard about Jones’s experience as an Assistant Attorney General.)  One reason not to vote for Haskins, at least in June, is that I’d like to see a race between two “well-qualified” candidates go on to November.  They’re both well-spoken and would have something interesting to say about the local bench.  Maybe we can all learn something from extending their race.

2C. Office 35: Ferguson vs. Luege (both rated “Qualified”)

Bar association rankings, while largely reliable, are to some extent inherently political; hard as humans may try to avoid prejudice, it’s in the nature of the beast.  So I suspect that there may have been factions favoring Ferguson and Luege here — because on its face it’s unclear to me why their rankings ought to be lower that those of Haskins and Jones.  Compared to the campaign-shy private practitioners Martin and Philips described above, they would seem to have more support given their respective ties to the District Attorney’s Office and to the Superior Court as a Commissioner.  The ranking seems like a slight slap in the face at both — and I don’t understand why.  Maybe next time around they should use plus/minus grading and just give them a “Qualified Plus.”  Or maybe this is the right call.  I thought that they both gave good speeches, though I favor Luege, the non-Rackauckasian.

2D. Office 20: Johnson (Well Qualified) vs. Hayden (Qualified)

This is the race that has tormented me.  It’s the only one on the entire stinking ballot where I didn’t finalize my decision as to how I’d vote until the Friday before the election.  It’s the only race that truly makes me feel sad.  I note that the OCBA may be having similar thoughts, because while incumbent Joanna Motoike was rated “Extremely Well Qualified,” Judge Derek Johnson — who has been on the bench far longer, but who has also been censured — got the same lower ranking as two non-judges.  The slaps that the judicial profession takes at its members can sometimes be subtle, but if you pay attention to them they can come with a real sting.

I think that Johnson, the incumbent, would probably be the better judge over the next six years than his challenger.  None of the attacks I’ve heard against his record has particularly impressed me except for the big one: his egregious mistake in a stream of consciousness ramble at a sentencing hearing, which started out “I’m not a gynecologist, but …” and went on to prove it.  (Apparently, he thought that the absence of physical trauma to the vagina necessarily meant the absence of express resistance.  It doesn’t.)  He is a smart man, though, who has presumably learned from the experience.  And I do recognize a strong presumption that a judge should be retained on the bench, because that’s the next best thing to not having judicial elections at all.

I can’t vote for him, though, for reasons that I’ll explain below.  My question has been whether I can vote for his challenger, Helen Hayden, or whether I should just sit out this race.  Hayden’s the wife of the man who ran against Rep. Loretta Sanchez in 2012 — not an act that I find endearing — but I can and should put that aside and assess her on her own merits.  She has been unfailingly bright and pleasant in our several personal interactions; I’m trying to put that — and my own opponent’s endorsement of Johnson — aside as well.

The Superior Court bench, from what I can tell I can, is solidly behind Johnson.  Maybe that means that they know him and respect him so immensely that losing him from the bench is unthinkable.  Another less savory reason seems more likely: in principle, and out of self-interest, sitting judges don’t like seeing other judges face serious challenges in their retention elections.  As noted above, I don’t like judicial retention elections at all — but they do exist.  Given that they exist, it seems best not to nullify them by preempting the possibility of competition.  And if any race this year deserved to be contested, it was this one, because there was unsettled business to resolve.

Given the view of most judges, I have enormous personal respect for what Helen Hayden is doing.  Her reasoning seems to be parallel to my own in the District Attorney race — she believes that she’s qualified, she believed that someone had to challenge this guy, and if no one else was going to do it then it would have to be her.  (And I’m pretty sure that she wouldn’t make the statement that Johnson did.)  She will get a lot of votes in both parties from feminists who think that Johnson’s statement was categorically disqualifying as well as support from some Republicans who will like the political benefit of putting an intelligent and attractive still-young conservative woman onto the bench.  (That’s not a complaint; Democrats would do the same for a liberal judge.)  But the Establishment voters, the ones most likely to go all the way down to the bottom of the ballot?  Among them, she’ll get slaughtered.

For me, this is a choice between logos and ethos.  I believe that Johnson probably usually does a good job in most of his cases.  I like the notorious “Festivus” decision; using the holiday as a basis to allow a prisoner a good preference wasn’t his idea, but the inspiration of a clever attorney who recognized that the judge needed some small nail on which to hang his inclination in favor of equity for prisoners, and that sort of ridiculousness is just part of how the system works.  But I find Hayden more ethically acceptable.  (The Committee on Judicial Performance’s unanimous censure vote against Johnson does weigh heavily on my mind.  It means that Hayden’s not simply making stuff up here.)  Because others may be feeling torn in a similar way, I’m going to present my reasoning in some depth.

3. It’s Not the Crime …

Here’s a possible surprise: for me, my decision is mostly not about the offensive remarks that Judge Johnson made at a sentencing hearing a few years ago — the ones that Hayden will gladly remind you led to his unanimous public admonishment.

Johnson’s having made those ignorant remarks is, believe it or not, itself forgivable.  People make stupid mistakes.  And here’s another surprise: while I think that it was a bad thought, I disagree with the characterization that what he said amounts to “if the woman doesn’t fight back, it’s not rape.”  It that had been his view, then he would have rejected the jury verdict altogether.  His view was that it was within the jury’s discretion to find that it was rape — but that wasn’t the question before him that day.  As he has repeatedly said — as if he thinks that the implication should be obvious to people, which it isn’t — this was a sentencing hearing.  It wasn’t about whether the miscreant being sentenced was guilty; he was!  It was a question of which available box fit him best.

As Vern (a non-lawyer!) astutely noted in a comment here, we have to presume that if a judge is to choose among multiple levels of severity for a crime, with different sentences attached to each, that there’s more than one such category for a reason.  This is a really important principle; when I say that Johnson would likely to a better job on the bench than Hayden, it’s partly because he seems to have a better handle on it — and it is one of the toughest parts of a judge’s job.  It’s similar to the tough task of the Governor in granting parole — but it can’t be evaded.

We have multiple sentencing categories in part because, as people contemplate or commit crimes, we want them to minimize the damage from their crime as much as possible.  The article for which I’ve received some small recognition is on kidnapping as a model for assessing domestic violence (102 Colum.L.Rev. 729, for those with Lexis), so I’ll use that crime as an example.

Kidnapping is a heinous crime — one of the few for which one can engage in justified lethal self-defense, as I noted in my article — but someone who kidnaps a victim and doesn’t harm them is acting in a “better” (meaning simply “less terrible”) way than someone who kidnaps them and allows them to come to physical harm.  One who negligently allows them to come to some physical harm is acting in a “better” way (in two respects) than one who kidnaps them and intentionally does them grievous physical harm.

They’re all still “kidnappings” — but we want criminals to understand that, if you kidnap someone, allowing that person to come to physical harm, let alone intentionally causing grievous harm, will aggravate the penalty that you will pay when you are arrested and convicted.  (This, by the way, is why the sentence for kidnapping will always be less than the penalty for murder — because, if it isn’t, then a kidnapper might be better off killing their hostage — and we don’t want that to happen.)  We only have one place where we can convey to criminals that we don’t want them to do something that makes things even worse — and that is when we establish and implement our range of sentences within a given category of crimes.

The different categories available for the crime of rape are there for a reason.  One rule of thumb might be that a rape that causes grievous permanent damage to the genital tissue is worse, for sentencing purposes, than one that does not.  If we do so, it’s not because we don’t take the latter seriously, it’s because we want a rapist NOT to escalate from the latter to the former — and we presume that they’re more likely to escalate if there is no additional penalty for doing so.  (if you want to think about it in sports terms, think of a “flagrant foul.”)

If, God forbid, one of my daughters were raped, I recognize that even if it is not physically destructive of their genitalia, it might still effectively be the end of her life because she may never psychologically and emotionally recover from it.  So, regardless, I want it punished severely.  And yet I recognize that some women — this week’s dear departed Maya Angelou is an example — do survive rape and go on, even if psychologically scarred, to live full and wonderful lives.  So yes, I do have a preference: if someone is raped, I would prefer that they were not genitally or anally mutilated as well.  And the only way to convey that message is with a blunt “if you do that, that will cost you extra years in prison.”

Good judges make distinctions between degrees of evil in sentencing hearings all the time — that’s why these hearings are so difficult for them.  Bad judges just say “to hell with it” and give everyone the maximum possible sentence, precisely so that they don’t face having to justify their making the welfare-of-future-victims preserving distinctions that got Judge Johnson in trouble.  I prefer a judge like Johnson who, in setting a sentence, does see a difference between a rape in which the victim’s genitalia are permanently mutilated and one where it is not to a judge who thinks that every crime deserves to be treated as the most aggravated one in its category.  Johnson’s foolishness was about the science of the matter, not the law.

Johnson’s view seemed to be that the reported lack of physical damage to the victim’s vagina was proof that she didn’t struggle to avoid sexual penetration by the man who had been threatening her with sharp and heated torture implements.  The answer to that is: “so what?”  In my opinion, a rape victim facing a torture implement gets to make up her (or his!) own mind regarding how much to struggle — it doesn’t change the fundamental nature of the rape.  But if what Johnson was saying is that this case wouldn’t go into the worst sentencing category because the rape didn’t involve severe and lasting physical genital damage — well, that may be a pretty reasonable consideration to keep in mind when making distinctions in sentencing.  (If the Committee on Judicial Performance that censured Johnson had the option of a worse outcome for him than that, then they used a similar logic to pull their punch.)

If Johnson’s error were not generally understood by judges and attorneys to have been a forgivable brain lapse, the need not to retain him in this election would have been so obvious that I expect he’d have drawn an opponent squarely within the “well qualified” ranks, rather than the “qualified” Hayden, and the Superior Court bench would not be so squarely behind him.

I still can’t support Johnson — but my reasoning is not really about the “crime” of what he said that day.

4. … It’s the Cover-Up

My problems with Johnson involve the present campaign.  He has benefited from what seems to be to be standard “smart” political advice about how to deal with a scandal: divert attention from your weakness and attack the opponent aggressively.  That’s sound, standard advice — it just happens to be an approach almost perfectly designed to drive away the support of people like me.  (I explain below what I’d have liked to see him do.)  If Johnson’s going to reap the benefit of the smarmier but smarter strategy, then it stands to reason that he should also have to pay the price for adopting it.

Some months back, Judges Johnson and Motoike both spoke before a meeting I attended the Democratic Party of Orange County Central Committee.  I knew from Ryan Cantor’s initial post on the matter that some judge who had gotten Todd Akin-y was out there, but I couldn’t recall his name and (mea cupla here) it just had not occurred to me that that judge might be a Democrat.  (I know, I know.  But the base rates suggested that it would be a Republican.)  Johnson told the audience, as has Judge Motoike in her speech, that he didn’t know why someone would oppose him for re-election.  When I later pieced together that “yup, that’s the guy that Ryan was talking about,” it was this statement that stuck most uncomfortably in my craw.

Of course he knew why Hayden was challenging him.  If he didn’t, then he was dangerously deluded.  I believe that he knows exactly why a candidate chose him to oppose — yo, censure vote! — and that he has just been doing the “politically smart thing” by not being candid about it.  If he had been candid — if he had explained it — because, as I note above, while it was a serious error of science it actually had a coherent explanation — I would be voting for him despite the controversy.  (And I’d send him a physiology textbook.)

But a voter’s job, like a judge’s job when acting as a trier of fact, is in part to judge credibility.  I think that he lied to me and everyone else that night about not knowing why Hayden had chosen him to challenge — and that he has been lying to others since.  (Vern reports that, at the later appearance that he attended, no one brought up the censure at all until Vern did in comments — and then Johnson got pissed off at Vern for raising the topic.)

I know that feigning perplexity about why someone was picking on him of all people was probably “the right move,” strategically, but I deplore it from a judge.  I think too highly of judges overall to accept that.

And so I can’t vote for Johnson.  I think that he’ll win anyway, and that my smart move would be to fall in line and support him — but I can’t do that.  The question is whether  I can vote for Hayden instead.

5. Differences in Judicial Philosophy

Hayden has tried to reassure me and others who are more liberal than what we suspect her judicial philosophy to be that we needn’t worry, because all she’s being doing as a judge is to “apply the law as it is written.”

That commonly expressed statement really bothers me — first, because it’s often so hard to do in principle, given that we have to interpret and extrapolate principles of law from context (using what are called “canons of construction” — which themselves may conflict) and then figure out how to reconcile their competing claims.  Second, it reminds me of the most egregious claim to that effect made in recent years: the claim by U.S. Supreme Court Chief Justice John Roberts that he would just be an impartial umpire there to “call the balls and strikes” as they were.  (Anyone who knows anything about umpiring should have felt a chill at that.)

Roberts’s “calling the balls and strikes” has led to some of the most activist and overreaching decisions in recent memory, from Citizens United to McCutcheon and well beyond.  The fiction that each legal question is like an arithmetic problem with a correct answer, and that conservative judges are the only ones sufficiently undistracted to figure it out, is one of the most corrosive aspects of our contemporary judiciary.  I don’t know why Derek Johnson is a registered Democrat in a largely Republican county, but given that he’s a judge it probably has something to do with the fact that he understands that.  That’s why Hayden’s criticism of Johnson’s “Festivus” decision bothers me — yes, it’s easy to ridicule, but it also suggests a belief in static formalism (at least for the lowest-ranked among us) where keeping the equities of a given situation in the forefront of one’s mind is both possible and desirable.

If Johnson is that sort of wise judge — one who can do for all before him what some judges would only do for those with whom they empathize because of matching race or gender or ideology and class — who will assess whether there is any give in the inevitably static rules of justice that allows it to be tempered with mercy, then I will miss his absence from the bench.  And I will hope that Hayden, over time, may buck the trend of her party and develop that sort of humane approach to judging.  She’s clearly a smart woman, and that gives me hope that, if she gets the chance, she will.

So, if you’re keeping score, that means that I disagree with Helen Hayden on the Festivus decision, I disagree with her characterization of Johnson’s position as excusing rape if the woman didn’t fight back, and I disagree with her implication that it’s wrong to distinguish between degrees of evil in sentencing, and her assertion that good judging is simply a matter of following the job as written.  So if anyone thinks that I’ve been wimping out in not having come out strong for Hayden before now, you’re wrong.  I have found the question of whether to vote for her or to abstain to be extremely tough.

But despite all that, because of how Judge Johnson responded to his political crisis, I have decided to vote for Hayden.

6. One’s vote does more than simply determining who will win

I made the decision to support Hayden when I received an e-mail from a prominent Democratic attorney, with whom I’m on good terms, advising people to support Judge Johnson.  I started at it for a moment, recognized the implication as to just how hard the bipartisan male-dominated power structure of the county would fight for Johnson, and decided that I would counteract that e-mail message.

I think that Judge Johnson will win.  If he does win, I want the margin to be as narrow as it can be.  And if by voting for Hayden it means that she edges him out by one vote, I can live with that unlikely probability.  But with my vote for, in all likelihood, a lower margin of victory, I want to send a message to all sitting judges, now and in the future:

DON’T DO THAT.

For some people, the “THAT” not to do will be the “make a stupid comment about women’s resistance to rape”; as I say above, that’s not the main issue for me: I think that Johnson was wrong, but forgivably wrong, wrong in a way that should simply get balanced against what he has done right.  (I stopped reviewing his decisions after I realized that he was feigning perplexity as to why he’d be challenged, because I already knew by then that I wasn’t going to vote for him.

For me, the “THAT” not to do is this: when you screw up, don’t pretend like it didn’t happen.  Justify it all you want, if you can, but don’t gaslight voters.  Don’t pretend that the whole challenge, following your unanimous censure by the Committee on Judicial Performance, isn’t the OBVIOUS reason for your vulnerability.  Don’t do THAT;  STAND UP AND TAKE IT LIKE AN ADULT.  Respect the electorate.  Risk the termination of your judicial career by going down, if you must, as someone who talked straight to the public in your time of direst crisis.

That’s what I want from a judge.

As for Hayden, I’m with the OCBA: she’s qualified.  She’s not only qualified by intellect and experience, but by temperament — not least because when someone really did have to run against Judge Johnson in the wake of his censure, despite the prospective negative career consequences, she’s the only one who did.  (I recognize that this logic may seem to tout myself as well, because I’ve done the same thing in challenging our much more egregious District Attorney.  But both my actions and my respect for Hayden’s derive from the same source: the belief that not enough people take responsibility for doing what needs to be done — and that that obligation to offer a needed challenge should be fulfilled where possible, even in a race where that may impose a significant personal cost.  Many will give this principle lip service; few will actually follow through on their beliefs)

And had a more obvious member of the judicial nomenklatura (the ones marked for eventual advancement) come forward, then maybe Johnson would have been removed — or, better yet, maybe he would have felt that he had to level with the public in order to win, and would have emerged from this thundershower on his career cleansed rather than muddy and drenched.

I don’t like that Johnson has put people like me — Democrats, feminists — in the sort of ethical bind we find ourselves in.  He had an option.  After his censure, he could have decided not to seek re-election in 2014 — but announced that, after two years off, he would seek election to an open seat in 2016 (or, if there wasn’t one, in 2018.)  That would show that he took the admonition against him seriously.  And the second best thing, the one that I more realistically recommend, would have been to acknowledge it and explain why, despite being wrong on the science, he was right on the law.  It would have been great for the public to hear from someone with a greater megaphone than mine how not throwing the book at everyone actually makes the world safer.

But, he didn’t.  He tried to pretend, where possible, that the issue didn’t even exist.  And so, if he wins, I want it to be by as narrow a margin as possible — and that means my voting for Hayden.  (If I thought she was terrible; I wouldn’t.  But I think she’d do fine.)  I want any judge in a similar situation in a future to look at that narrow margin of victory– or defeat — and think twice about any campaign plan to bluster through their errors as if they didn’t exist.

So, Helen, you have my vote.  If you win, and I hope you do, please temper chilly justice with warm mercy.