Friday, October 9, 2009

The Whos and Whys: A Summary.

So, I am a lawyer (Stanford, '81) and a novelist (a series of mysteries featuring a gay criminal defense lawyer named Henry Rios) and, as of Monday, a candidate for a seat on the San Francisco Superior court. That's what we call the trial court in California, a slightly confusing designation since superior implies, well, elevation, but nearly as confusing as what New York calls its trial court -- the supreme court.

As it happens, I work for the Supreme Court, California's, not New York's. Since 2004 I have been a staff attorney for Justice Carlos Moreno, who, most recently was the lone dissenter in the court's decision to uphold Proposition 8, which revoked the right of same-sex couples in California to marry.

As it also happens, I'm gay, and, as of October 21, 2008, married to an extremely loveable man. Really loveable -- kids want to sit in his lap, dogs want him to pat their heads. Even though California's Supreme Court upheld Proposition 8 (minus Justice Moreno), my partner and I are still legally wed. This is because we got married before Proposition 8 passed. The court decided that the marriages of all the same-sex couples who got married before the election that outlawed gay marriage would remain valid. So, there are roughly 20,000 same-sex couples who are married in California even though same-sex marriage is banned, for now.

What does this have to do with me running for judge? Well, I have worked for and around judges for most of my career as a judicial staff attorney. So, I know from first-hand experience that the shape of the law is determined, at least in part, by the personalities and the life experiences of the men and women who wear the black robes. I also know from first-hand observation and also from state bar surveys that the vast majority of judges in California are white, heterosexual and upper-middle-class. California's population, on the other hand, looks very different -- there is no single majority racial or ethnic group, there is a large LGBT (gay, lesbian, bisexual and transgender) community, women are about half the population and I imagine most Californians make a lot less than the six-figure salary judges are paid.

I don't mean to suggest that these judges are necessarily biased or unfair because their backgrounds may be different than the backgrounds of the people who come before them, and they -- the judges -- have never personally faced the challenges of the disenfranchised. Most of the judges I have known worked hard at being fair. But it can make a difference. Maybe at the margins as when a judge has to decide which of two witnesses is telling the truth and one witness shares the judge's background while the other doesn't. And sometimes it can make a difference not at the margins of a case, but the heart of the case, as in the male judge ruling unfavorably on a claim of sexual harassment because he thinks the female plaintiff was overreacting. Does this happen? Yes. I can provide the case citations.

There is also the point -- often overlooked -- that the legal system is not a private system of dispute resolution but the third branch of government in our representative democracy. Judges are part of that system. No less than legislators they are public servants who represent the community. In California, they are also subject to the will of the voters. Every judge in this state, from the Chief Justice to the trial court judge in the one-horse town comes before the voters who decide whether that judge should continue in office. Of course, by the time most voters get to the end of one of California's voluminous ballots and see the judicial races, they are apt to skip them entirely or take the path of least resistance and vote for the incumbent. (Or, like my friends, call whatever lawyer they know and ask him or her who to vote for.)

I am running for judge because I think there is a place on the judiciary for a gay Latino raised in a working-class family. In fact, I think there has to be a place for someone like me. And I am running because I have spent almost my entire legal career in public service and I see this as a way to continue that service.

And because I think it will be a great adventure!

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