The judge objects, but doesn’t suggest a better way

Judge Sean Dowling What's the question?

Judge Sean Dowling
What’s the question?

Retiring Superior Court Judge Sean Dowling took to the pages of The Union last Friday to comment on questions I posed in my weekly column that should be asked of the candidates who want to replace him.

Dowling, who has become talkative now that he no longer has to face the voters, wrote that I asked the wrong questions, questions that do “not educate the public” as they try to determine who should replace the incumbent.

The first question Dowling objected to is the candidates’ position on the courthouse. Dowling responded: “This issue is unrelated to judicial qualifications. Local judges do not build courthouses or control funding.” That’s true as far as it goes, but we’re in a unique situation here.

The state typically comes in and just builds a new courthouse. In the case of Nevada County, state officials are being asked to consider renovating the current structure. What local judges think about renovating the current courthouse or building a new one could well influence the state’s final decision. Dowling knows that, but he’s trying to give the candidates and his fellow judges political cover.

Answering the question would also tell voters if candidates are willing to make unpopular decisions, a key aspect of being a good judge. Don’t expect voters to be enlightened on this point before they have to make a decision.

I also suggested that candidates be questioned about the current bail schedule, which I characterized as a “low-cost get-out-of-jail card.” Dowling response was interesting: “There are many ways in which the bail process breaks down: 1) the arresting officer/jail fails to ask for a bail increase or a 48-hour hold.; 2) the DA doesn’t file the complaint on time; 3) the DA is not available at arraignment, so no request for increased bail;…”

Dowling is clearly tossing the ball to the sheriff, police departments and the district attorney. Are these break downs caused by the budget cuts imposed in recent years, or is there some other cause? Don’t expect anybody to discuss this in public.

Finally, I recommended that the judicial candidates be asked to express their philosophy about plea bargains. Not any specific case, just their personal position on the issue. Dowling wrote that it would be unethical for a candidate to respond to such a question, citing several Judicial Ethics Canons. “Canons are mandatory and violations may result in removal.”

Antonin Scalia Violating the canons?

Antonin Scalia
Violating the canons?

Where does that leave the likes of Supreme Court Associate Justice Antonin Scalia, who has made it clear that his decisions are filtered through two basic beliefs: Textualism in statutory interpretation and originalism in constitutional interpretation?

Dowling writes that “A well-informed electorate will make the best choice for our next judge,” but gives the electorate few ways of becoming well-informed. Apparently he wants us to base our voting decision on the eighth-grade civics course pablum the candidates are dishing out.

Or you could try something more substantial, like the results of the county Bar Association’s plebiscite.

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