Voters Recall U.S. Judge for First Time Since 1977

lenient sentence in a sexual assault case. In Santa Clara County, Superior Court judge Aaron Pursky sentence Stanford student Brock Turner to just six months in jail for sexually assaulting a woman who was unconscious. Prosecutors had asked for six years. Persky spoke with CBS News before the recall vote. If a judge is thinking, in the back of his or her mind, how is this going to look? How will it look on social media? Will I be vilified on cable news? That's the wrong avenue. We can't do that.

We shouldn't do that, and we shouldn't put judges in a position where they fear it. Joining me is Joshua Spevac and your fellow at the Hugh Carree, Institute for Government Reform at Wagner College and founder of the Recall Elections blog Joshua, Is this an isolated case or are there implications for the future. There doesn't seem to be too many. There aren't too many possibilities of a recall

of judges. Uh. They don't happen frequently. The last one in the US was seventy seven, where somebody was removed, and the last time they even got one on the ballot was both in Wisconsin. Uh So, Well, there's always talk whenever there's a decision, whenever there's a controversial decision. For instance Prop eight, when that came down, there was threats of a recall. Uh famous California Supreme Court Chief judge faced constant threats of a recall. Eventually she was

removed by retention election. But it's very hard to get it on the ballot, so that you would need sort of the firestorm of criticism, and as happened in this case, a lot of money um to to do. The real hurdle is getting the signatures. Uh So, to get the recall to the ballot is the problem. Who spearheaded this

recall effort and where did the money come from. It was a Stanford University professor who led the effort, and they seemed to raise the money, you know, on viral a and on social media, and they did a very good job fundraising and then using it effectively to get the signatures. So it is possible to get this type of action together, it's just quite difficult. So I want to talk about some of Judge Persky's responses. He had said that he had a legal and professional responsibility to

consider alternatives to imprisonment for first time offenders. Is that a valid concern? I think that is. There's always this concern with recalls, how what should they be allowed for, what should they be used against judges? And from the very beginning in California there was a real debate of

whether the recalls should be extended to judges. A number of states do not extend it to judges for that reason, and for instance, William Howard taft To actually vetoed the Arizona Constitution originally until they removed a recall of judge provision. So this is a long time debate. It hasn't played out too much simply because there haven't been too many

uh judge recalls in US history. So Judge Persky claimed that a recall causes judges to consider the reaction in social media and the news when sentencing someone, and that it's an attack on judicial independ endance. What are the responses to that? They seem pretty good arguments. Yes, and I think that actually the responses, that is the goal that recalls when they were adopted, were to give a push officials to have more of a response to popular opinion,

and including in that was judges. Uh, so he's not wrong, it's just the the opinion, the desire to have a recall is in many ways pushing that exact point that, yes, we do want the judges to have more of a feeling of what the popular will is, so let's go ahead. So it's really how how valuable is that? How is that dangerous? Or is that a positive? As the adopters of the recall what they did in this case, the sentence and the backlash prompted California lawmakers to change the law,

that seems a good response to this. Yeah, So that again, that's very much in keeping with the ideology of the recall, that you would be able to do this, you would be able to get a recall on the valid you'd be able to exhibit voter anger and show it and uh there would be a reaction from elected officials. So this is in many ways part and parcel of the whole direct democracy movement. Does it make judges more political

than they already are? It's hard to say that one or two recalls would do that, but judges have been overall throughout the country. Uh, there does seem to be more of a focus on the political politicalization of judges, though since they're elected officials in many states, that's not a surprise. UM. But we saw the Iowa judges removed for their votes on gay marriage. The Wisconsin judge elections were very highly contested, uh, and West Virginia had the

same thing. Where these just the appointment of judges becomes a major issue in many ways. That was one of the primary motivations in the two thousand and sixteen election on the Supreme Court, and it does seem to be a push for the Republicans in Congress, maybe their single biggest issues. So the recall sort of fits in with that whole politicalization of the judiciary. Right, we should mention that Supreme Court justices and federal court judges cannot be recalled.

They're there for life. UM study of elected state judges by n y U Law School concluded that judges are influenced by their election cycles. The studied showed judges issuing longer sentences for serious felony conviction when they're close to re election. Now, that sort of that seems like it's a bad result of having elected judges. Do you favor appointed judge as are elected judges? Uh, you know, I

don't know which is better. I've seen in New York there there's some a lot of negatives to having elected judges. There were some corruption scandals surrounding that, as opposed to the appointed judges. Where there it seems to be better than New York State's UH Court of Appeals, the highest court doesn't have elections. They have appointments, and they seem to be well respected generally. Um, but it is it's a matter of debate whether judicial officers should be elected.

Uh Is this a good thing? Is it good that they are uh influenced by voter opinion? Well, some people would say yes, you know, they should be They should be aware of what the will of the voters and the will of the popula says, on the other hand, you know, if they're changing their opinions, maybe that's not a good thing. We've been debating this for quite some time, and I suspect that we will continue to do so. Thanks so much for your input. Joshua. That's Joshua Spivack.

He's a senior fellow at the Hugh L. Carey Institute for Government Reform at Wagner College. The stakes are very high in a Missouri trial where J and J is defending itself against claims that it's sold its iconic baby powder knowing it caused ovarian cancer. It's the biggest trial yet in the recent wave of cases against J and J. Twenty two women are trying to link their illnesses to exposure to asbestos in the company's talk. Joining me is

Howard Ericson, a professor at Fordham Law School. Howard, will you explain how the allegations here are slightly different than in other trials. Yes. In this case, the plaintiff, player Mark Lanier is UM is pushing a theory that the traces of asbestos in Malcolm powder caused ovarian cancer in these twenty two women and UM and that's a theory that hasn't been used in the in the prior ovarian cancer cases. So is that a risky theory? Well, I

suppose that. I think it's a smart theory because there have been recent plaintiffs verdicts in cases involving mesa seloma that is an asbestos linked type of cancer, and I think I think the plaintiff lawyer in this case is hoping that those prior verdicts that have found that there were traces of asbestos in uh in talcum powdern hoping that will play out um similarly in the ovarian cancer cases. But it does require new science and it remains to

be seen whether the jury will believe it. Mark, you mentioned him. Lanier is representing the women and he's one of the pre eminent plaintiff's lawyers in the countries. Billions of dollar verdicts are par for the course with him. Is his presence changing the scenario or changing it up a little? Well, he's he's a big time trial lawyer. I mean, this is uh, this is a big trial. You know, as you mentioned, it is the biggest case to go to trial in the in the talk and

powder litigation with twenty two plaintiffs and all that. So this is really this is the big at bat and they are bringing up you know, the home run hitter on and and as you say, he is accustomed to winning big verdicts in mass torque cases. It is his first talk trial. However, now is this case going to be about the science and what the jury believes about the science or will it be about documentation of whether or not Jay and Jay knew it's product contained asbestos.

I have to assume the plaintiffs will want to emphasize what Ja and Jay knew, because you can always find a memo somewhere showing that someone at a company was more read about something. I assume the descendant J and J will want to emphasize the science and the you know what is very much an open question of and and something that it's not clear the plaintiffs can prove that is the causal link between Telcom POWERN and ovarian cancer?

Have there have been many trials in different states, plaintiffs, verdicts, seems, defense verdicts, appeals. Can you summarize where the litigation stands? Is one side clearly winning most of the cases or is it harder to read than that it's You cannot say that one side is clearly winning. What you can say is that in other states, particularly New Jersey and California, UM, the defendants have had more success, and in Missouri plaintiffs

have had a lot of success. This case, of course, is happening in St. Louis, Missouri, which is exactly where the plaintiffs want to be. So how ared why are our plaintiffs having more success in Missouri than in California and New Jersey. Jurisdictions vary. They They vary in some of their procedural rules. For instance, in SURI is pretty liberal about allowing joinder, and that's one reason this case is going forward with twenty two plaintiffs. They vary in

the judges. And Judge Burlison, who is overseeing this case, has overseen other cases that have ended up with plaintiff verdicts, and they differ in jury demographics, and I think the I think the plaintiffs were happy to to try as many of these cases in St. Louis as possible. Now, let's talk about how these cases might affect a settlement of some kind down the road. Or have we seen have they seen enough of these cases to know where they're going or are they going to have to try

a lot more in different states. Mass towards vary. There is there are mass towards litigations in which the parties are able to reach a global settlement before there is a single trial verdict on this one has now seen a number of trial verdicts. But um, but there's there's no sign yet of any sort of global settlement. Um. You know, obviously the outcome of a case like this will have an enormous bearing on the settlement negotiation dynamics.

Which is, the stakes are high, not simply because it is a twenty two plaintiff case with um with a lot of money at states in this judgment. Um, the stakes are also high because this is going to change the momentum one way or another in terms of settlement negotiations. Howard, is this similar in any way to the tobacco litigation in and by that I mean that the cases are tried, You hear about verdicts, and then there's an appeal after an appeal, after an appeal, and you you know, down

the road, no one is getting paid any settlements. The guest to get too much there, right, the tobacco litigation went decades without a penny being paid, and then all of a sudden in the nine nineties things kind of turned around with this with the Attorney General cases, I think this is a bit different. I think this is following a path more like the biox litigation or other pharmaceutical mass towards where there are a number of cases,

but it's all moving very quickly. This is really just the past couple of years, the number of cases has exploded, um, and the trials are moving quickly. So it seems to me the pace of this is all really quite quick and um, so look down the road with about thirty five seconds here, how how long before we see some kind of definitive move or a payment or something like that. You can't predict when Jay and j is going to decide um that there is an appealing settlement to be had.

It seems to me all eyes right an hour on this trial which could last a month, and how this jury reacts to the scientific evidence. Well, we always appreciate your coming on with these mass toward cases, which is your expertise. That's Howard Ericson, a professor at Fordham Law School. Thanks for listening to the Bloomberg Law Podcast. You can subscribe and listen to the show on Apple podcast, SoundCloud, and on bloomberg dot com slash podcast. I'm June Brosso. This is Bloomberg