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Seize the Gavel

Pay attention to judicial elections, or get stuck with a confederacy of judges

Franklin Bynum doesn’t sound like a typical Texas judge. He sounds like someone you’d bum a cigarette off of at a basement show. The thirty-eight-year-old talks fast and smooth. His easy drawl and unrelenting disdain for authority feel natural for someone who’s fought the law and won for more than a decade—recently beating back police unions and the DA’s office to endure as America’s first avowedly socialist judge in more than a hundred years. Bynum made headlines in 2018 when he was elected on a blue wave of judges that swept through Texas, standing out in a crowded field by virtue of his affiliation with the local Democratic Socialists of America. His mischievous grin appeared in photos across a handful of major outlets, even landing a spot in the New York Times for both his socialist bona fides and his radical determination to end cash bail. In 2019 he was part of a landmark settlement all but eliminating cash bail for misdemeanors in Harris County, which includes Houston.

In Texas, judicial elections are a big part of the state’s money-drenched political culture, with an organized lobby of trial lawyers squaring off with powerful corporate interests to influence voters. It’s voters who choose judges from the local level all the way up to the state’s highest courts: the Court of Criminal Appeals and the Texas Supreme Court. Until recently, this pitted Old Testament, law-and-order corporate Republican judges against marginally less draconian Democrats.

Yet, even as new Democratic candidates have fared better in the cities, Bynum’s success has not led to a wave of radical candidates. “There are whisperings you know? People call you up, but at the end of the day, people are freaked to run as a socialist, or even as a radical reformer. They have no support, and I get it,” Bynum tells me. “But that also could all change very quickly.”

One of the biggest challenges to building power in the courts—especially in the lower courts—is that many of them just aren’t on the map.

Bynum isn’t the only radical judge to break through—DaSean Jones was also elected as a Democrat in 2018 to a district court seat in Houston, and Mik Pappas ran as an independent to win a district court seat in Pennsylvania’s Allegheny County in 2017—yet there are hundreds of judicial elections around the nation in every cycle, and most of them draw status quo lawyers who display no desire to challenge the system currently in place. The nation’s confusing patchwork of judicial selection methods makes it difficult for national activist groups to even put judicial power on the agenda. More than half the states have some form of election for their highest courts—with two (Virginia and South Carolina) putting the choice in the hands of legislators. Some states have appointed judges but hold retention elections. Some states have a mix of partisan judicial elections and non-partisan ones, depending on the level of the court. Seven states hold no popular elections for judges at all.

Consequently, one of the biggest challenges to building power in the courts—especially in the lower courts—is that many of them just aren’t on the map. That is to say nobody has a complete record of where every trial court is or how each one operates. Even the National Center for State Courts, which seems like the organization that should have comprehensive information on these courts, can’t give exact figures: a spokesman states that “because there is no federal standardization of lower courts, or a federal reporting mandate, requests to states for trial court information often go unanswered.”

Meanwhile, the court system is shaped by what David Fontana, a law professor at Georgetown University, describes as the technocratic winnowing of law students by law schools, bar associations, and the strictures of the legal pecking order: “You spend three years surrounded by people studying to become a professional. You then spend decades surrounded by people in that profession. However much you want those people to be subject to influences from outside the profession, they’re still going to have that professional identity that limits how far they allow themselves to go.” Fontana maintains that the assemblage of academic molding, formal processes for moving up the prosecutorial or private practice career ladder, and lack of stature associated with local trial courts means that ambitious lawyers are unlikely to adopt radical positions, or even to pursue a seat on these courts to begin with.

It’s not that liberal groups don’t think about judges, it’s just that almost all the attention is on appointments to the federal courts, which are now sinking under the weight of hundreds of Republican appointments thanks to the GOP hold on the presidency and the Senate. Groups like Take Back the Court and Demand Justice are staking everything on Democrats regaining executive and congressional power in November. With the Supreme Court in danger of falling even deeper into an arch-conservative majority, it’s as if criminal justice reform activists are too paralyzed to work on a second front: electing a progressive firewall of judges in the lowest courts to block unjust eviction cases, to recognize class and racial inequities, and to reverse tack on drug offenses and nonviolent crimes, regardless of who ends up in the Senate and White House.

The closest thing progressives have to a national legal coalition approximating the Federalist Society—the hive of reactionaries, evangelicals, and originalists that since 1982 has positioned conservatives jurists like Brett Kavanaugh, Neil Gorsuch, and the late Antonin Scalia for appointment—is the American Constitution Society (ACS). Founded in 2001, the ACS came about twenty years too late as a response to the Federalist Society’s gleeful celebration of its role in tilting the scales of a Supreme Court that narrowly served the presidential election to George W.  Bush in 2000. The ACS has failed to match its right-wing counterparts in political influence, largely due to the same incompetence and timidity that plagues the Democratic Party with which it is aligned, hobbled by a self-defeating solipsism, halting bureaucratic stagnation, and a petulant elitism anchored in the dogma of the elite law schools from which it draws its top-tier members.

With the Supreme Court in danger of falling even deeper into an arch-conservative majority, it’s as if criminal justice reform activists are too paralyzed to work on a second front.

In 2016, the ACS achieved just one quarter of the Federalist Society’s $26.7 million fundraising total. That’s because the latter safeguards and advances the interests of a broader swath of the economic elite, with donors like the Koch brothers and Mercer family enthralled by a thoroughly right-wing judiciary. There is also the stark reality that the American judicial system is an inherently conservative institution. Uprooting the existing financial and carceral penalties that target the poor and dispossessed requires more energy from progressives seeking to pry the judiciary toward egalitarian ideals than from reactionaries attempting to broaden these same excesses.

And while conservatives have embraced the political battle for the courts, some liberals are ambivalent: they dream of ways to depoliticize the judiciary by lobbying for the elimination of judicial elections altogether, replacing them with “impartial” nominating boards and merit counsels. This has not only failed to produce changes in nominating procedures, it also fails on its premise alone: the compositions of nominating boards are far from neutral, tilted by the vested interests of lawyers’ associations and special interest groups who help to fill their chairs.

The liberal allergy to embracing an openly left judiciary endures despite the fact that partisan trial court judges are directly elected in twenty-nine states—judges who exercise immense oversight on police misconduct, petty crimes, municipal violations, eviction hearings, and cash bail. For organizations like the Brennan Center for Justice that appeal to a neutral, idealistic, and liberal conception of justice, electing partisan judges to address these areas is playing into conservatives’ hands. The assumption is that “special interests” will unduly influence elections, to the detriment of liberal goals. This assessment, however, serves only to prioritize a slightly different assortment of special interests.

The deficit in court data and a series of institutional roadblocks for left-wing judges are not insurmountable barriers to forming a progressive judiciary, as the handful of sitting socialist and reform-minded judges make clear. But if the radicalism of today’s prison-abolitionist and socialist activists that influence judges like Bynum is to spread onto the national stage, it must have its own jurisprudence in the shape of an ideological movement that can replicate and extend beyond the lonely courtrooms where it now lingers.

On the eve of the Bolshevik Revolution and just over a hundred years before Franklyn Bynum’s election, Jacob Panken was elected as the first socialist judge in the United States on November 6, 1917. Ruling from the bench of a municipal court on the lower east side of Manhattan, the jurisprudence of Panken’s chamber was informed by what the former-garment-worker-turned-lawyer called “not technical but human justice.”

Panken defined his tenure on the municipal court by siding with working-class tenants facing eviction—all while leveling fines against law-evading landlords. He gave impassioned speeches to juries, imploring them to apply his own socialist standards to their verdicts, and advocated for a critical interrogation of the laws at hand rather than a literal interpretation of the municipal code.

Panken offered the same radical framing of the role of lower courts in justice that Bynum echoes today: judiciaries are malleable bureaucracies that, while long abused as engines of incarceration, hold the potential to serve as an administrative arm of the welfare state, incubating social programs, and attacking economic inequality.

There has never been a better time to fight for a radical judiciary divorced from the cruelty of our country’s founding.

For all his dust ups with the standard-bearers of the status quo, Panken was a moderate socialist, not an anarchist. He broke with the Communist Party over its refusal to effectively build power within state bureaucracies, and despite his radical interpretation of the law remained so well respected that when New York Mayor Fiorello La Guardia created a new domestic relations court in New York City, he appointed Panken as one of its first justices. The court as understood by Panken was a “laboratory, a clinic, [and] a social agency” which he used to re-route juvenile defendants away from prison and ensure fair settlements for the poor families that appeared before him.

Like many state Supreme Court justices of the modern era, the judge from the lower east side stumped across legal societies and town halls, colleges and political summits, using each venue to preach his legal doctrine and spread his political gospel. Panken defined his career not only with compassion, but also with a doctrine tied to his roots in the Yiddish Socialist movement, one that advanced a coherent conception of justice falling outside the legal formulations of the ruling political parties. It was simple enough to be replicated, and convincing enough to preserve his legitimacy as a judge.

Reversing the damage wrought by Trump and his army of federal and Supreme Court justices will not be carried out in the lower courts alone, and it will not happen quickly. But that’s a poor reason to mirror the neglect that so-called criminal justice reform organizations have shown when it comes to recognizing the power of the lower courts to uproot and replace our ever-expanding punitive bureaucracy. As millions now face eviction hearings in response to the disastrous federal coronavirus response, there has never been a better time to fight for a radical judiciary divorced from the cruelty of our country’s founding.

Liberals are fond of admonishing radicals and reformers with variations on the theme “don’t get mad, vote!” But when it comes to the lower courts, this slogan slips into sardonic reversal. As an explosive Reuters investigation recently disclosed, thousands of “bad apple” judges have faced disciplinary procedures yet still remain on the bench, many of whom could be handily deposed by a new generation of candidates from the left. Instead of reforming a broken system through broken oversight boards, broken review commissions, broken promises, and broken strategies, the fight to end mass incarceration and our abhorrent justice system must go through and not around the lower courts, finding human justice in the vaunted chambers that have long ignored its call.