The un-democracy of San Francisco's recall
Questions about the temporary DA and how we got here. Also: Rolling Stone's SCOTUS prayers report.
Starting a newsletter, I was told, is a marathon, not a sprint. It takes time to build up a pattern for what your publication looks and feels like, to build up a subscriber base, and the like. It makes sense, it’s exciting, and I’m eager for that challenge.
At the same time, I started my newsletter at an extremely high-intensity, important moment as the Supreme Court term’s decisions came to their aggressive conclusion. In other words, I started the marathon with a sprint.
Now, though, the court is out for the summer and I hope to be able to start figuring out what this space is going to look like going forward. I’m going to try things out. Some things will work. Some won’t! Please, let me know which is which. In the comments, with likes, by sharing, via email, or — if you’re here in DC — by telling me when you see me working away at a coffee shop. You’re my subscribers and readers, and I want to know what you think!
A NEW DA, AN OLD STORY: On Thursday, San Francisco Mayor London Breed announced that Brooke Jenkins is San Francisco’s next district attorney, after last month’s recall election that swept out San Francisco’s elected district attorney, Chesa Boudin. The person who was the face of the recall election, a former prosecutor who left Boudin’s office to support the recall, is now going to take Boudin’s job.
Jenkins claimed a mantle of reform in her support for the recall, but even her departure from the office raises questions about that claim, as The San Francisco Standard noted in an article about her appointment:
Her last case was the murder trial of Daniel Gudino, who allegedly killed his mother while he was in a severe mental health crisis in which he thought she was a demon, according to records reviewed by The Standard.
Jenkins sought to send Gudino to prison for life instead of a mental health facility even after she lost her bid to declare him sane. When the District Attorney’s Office declined to proceed with a retrial on the insanity portion of the case, Jenkins did not show up to court, according to transcripts. She resigned that same day, saying publicly that she had been undermined by her superiors.
Despite leaving the office in such a manner, Jenkins — whose tenure in the office raised other questions as well — will now be running it.
I talked with Kate Chatfield, Boudin’s chief of staff (and a former co-worker of mine), shortly after the news of Jenkins’s appointment was announced, asking her where her mind is at as Boudin leaves office.
“I think we’re setting up DAs for failure,” she said, “because they can’t solve the problems we have.”
Pointing to the role — and responsibility — of mayors (like Breed) and police for dealing with so many of the problems at issue, Chatfield said that all of the attention on the role of prosecutors is “almost … too much” because it has distorted the public’s understanding of the power of prosecutors to change things if they lack support from the police and the city or county leadership.
In Boudin’s case, she highlighted the way the police in San Francisco used their power, and numbers, to oppose Boudin from before he even took office (something that has happened elsewhere when progressives have won elections as prosecutor). In part because of that, Chatfield said bluntly of the recall result, “They won.”
Jenkins’s appointment exemplifies some of the problems with the recall process that Boudin faced, which are even more exaggerated than in statewide recall elections — like the unsuccessful recall that California Gov. Gavin Newsom faced. The way recall elections are devised in California, they are lacking one of the most fundamental elements of democracy: a choice between candidates.
By allowing voters to simply choose whether to retain or remove Boudin, none of the ordinary trade-offs that voters need to make when selecting among candidates were at play. Instead, voters were simply voting yes or no on a single officeholder — in the midst of a pandemic that is still killing hundreds of people across the country weekly1 and all of the fallout from that pandemic. In this environment in particular, it’s easy for supporters of a recall effort to encourage voters to direct their anger at all manner of issues throughout the jurisdiction at that officeholder.
An independent state commission called earlier this year for turning California’s recall elections into “snap” elections, meaning that the officeholder would be placed on the ballot against other candidates if enough signatures are secured for a recall vote. (The low number of signatures needed to prompt a recall vote is another problem addressed by the commission.)
Further, in this local recall election — unlike a statewide recall — the second step of the recall was that Breed got to select the stand-in if Boudin was recalled. In a statewide recall election, by contrast, the second step is a second ballot for voters to choose who takes office should the officeholder be recalled. (Again, the commission criticized that aspect of statewide recalls because it’s ultimately antidemocratic, but, relevant here, the local outcome is even more antidemocratic.)
What that meant here is that, on Thursday, Breed simply got to pick a name and put that person into an elected office.
PRAYERS AT THE COURT: It’s the first week with the Supreme Court justices on recess, but that hasn’t stopped Supreme Court news.
On Wednesday, Rolling Stone published (non-subscriber version here) a big story about Liberty Counsel, which regularly participates in cases before the court, and a staff member of a group, Faith & Liberty, that operates under the umbrella of Liberty Counsel. As the Rolling Stone story details, the staff member essentially bragged last week about praying with some of the Supreme Court justices at the court itself to a person recording her surreptitiously in front of the Supreme Court.
Although not a clear-cut case, there are ethical questions raised by the story, which are discussed by experts throughout the report. Depending on yet unreported facts about the relationship between the two groups and the extent of the interaction between the staffer (or staffers) for the groups and justices, the propriety of the relationships — and of the justices involved voting on cases in which Liberty Counsel is involved — could be questioned. Ultimately, however, law professor Steve Vladeck raised a point that I’ve reported on previously — the largely unaccountable nature of justices.
As Rolling Stone detailed Vladeck’s comments:
That the justices are their own keepers in regard to those [recusal] rules creates complications, however, says Steve Vladeck, a constitutional-law expert at the University of Texas Law School. The relationship between Faith & Liberty and Liberty Counsel, as described by Rolling Stone, “could make a reasonable observer worry about the appearance of partiality,” he says. But the concerns the scenario raised shouldn’t be about recusal. “What that really reveals is how problematic it is that there isn’t an objective mechanism to resolve these sorts of questions.”
Check out Kara Voght and Tim Dickinson’s full report.
A FINAL NOTE: More on this upcoming scheduled execution, one of two scheduled for July, next week.
This sentence was corrected was accurate data on current Covid deaths.