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January 10, 2010 at 3:18 PM

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Electing Judges: For and Against

Posted by Bruce Ramsey

A panel discussion was held Saturday at Seattle University on whether judges should continue to be elected. The discussion was sponsored by the Justice for Washington Foundation. It was somewhat skewed in favor of elections, but still revealing.

Justice Gerry Alexander of the Washington Supreme Court, was originally appointed as a judge by Gov. Dan Evans and later elected to the high court, and for a long time was chief justice. In 2006 Alexander was in a nasty advertising war with challenger John Groen—the nastiness coming in each case from independent supporters, not from them. Alexander is now in his last term, because on Dec. 31, 2011, he will have reached 75 and be legally obligated to retire.

Not surprisingly, since he won them, that Alexander favors elections. “I think we have a good judiciary in Washington,” he said. Being accountable to the people, he said, “gives you a feeling of independence. You’re not beholden to the Legislature or to the Executive.”

Also, he said, judicial elections fit with the political culture of Washington, where we elect county cornoners, the insurance commissioner, land commissioner, etc. “I don’t see that system changing,” Alexander said. “I don’t sense any groundswell at all for changing our system.”

Sal Mungia presented the official position of the Washington State Bar Association in favor of keeping popular elections. “We have a system that is working well,” he said.

In practice, he said, most judges are originally appointed by the governor to fill a vacancy and face election as incumbents. Fewer than half our judges get their jobs initially by election. though the figure is more than half for appellate judges, and of the nine justices of the Washington Supreme Court, eight rose to that position by election.

He might have added that most superior court judges run unchallenged, and that many appeals court judges do, too.

If anyone wants to argue that it’s better for judges to get their jobs by appointment rather than election, Mungia said, they should compare evaluations of appointed judges versus elected ones. This hasn’t been done, he said.

There’s a fine project for a law student.

John McKay, law school lecturer and former U.S. Attorney, said elections don’t work well because there are too many candidates, the judicial canon doesn’t allow them to say what they believe, and the public is left ignorant. “Even in a weed-control district, the candidates might debate about weeds,” he said. “Judges can’t debate the law.”

McKay has a point here, but it is not as final as that. Some candidates won’t talk the law—Justice Alexander would not, though Justice Jim Johnson did when he ran. He didn’t say, “Elect me, and I’ll rule for property rights, free speech and the freedom of religion,” or “Elect me, and I’ll rule to protect ordinary citizens from criminals,” but it was clear enough what his philosophy was.

McKay also pointed out that lots of voters refuse to vote for judges, leaving that part of their ballots blank. “They don’t vote for judicial candidates because they don’t have the information they need.”

Slade Gorton, former U.S. senator, replied, “The election is better that way.”

Gorton blasted the “Missouri system,” in which a panel of experts offers the governor a choice among three judges, as “a self-perpetuating elite,” and said there is a political movement in Missouri to dump that system and go back to popular elections.

As for the problem of judges who won’t talk, Gorton said, “The solution is to allow them to talk about policies.”

McKay responded: “There is one elite that selects most of the judges, and that is the governor.”

Gorton said even though he is a Republican and there hasn’t been a Republican governor of Washington in 25 years, he is still more comfortable in judges being appointed by a Democratic governor than by some panel of experts “not responsible to the people.”

At least as regarding the Washington Supreme Court, I am in favor of elections, nasty ads and all, for the reason Justice Alexander gave: being elected by the people gives him a feeling of independence from the executive, and it is the crucial job of the Supreme Court to tell the governor and the Legislature what they cannot do. I think of this not so much as "populism" as constitutionalism.

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