Finding a way to maintain judicial independence
The U. S. Senate appears to have averted its latest showdown over filibusters to block judicial nominees, and Dino Rossi won't appeal his...
Special to The Times
The U.S. Senate appears to have averted its latest showdown over filibusters to block judicial nominees, and Dino Rossi won't appeal his lost gubernatorial election because he says the Washington state Supreme Court is not politically predisposed to rule in his favor. These controversies are only the latest examples of politics' increasing invasion into judicial selection.
The hallmark of our American judiciary has always been impartiality. That impartiality is increasingly at risk. In both our nation and Washington state, political divisions are deep and margins of advantage are narrow. Consequently, political parties and special-interest groups may look for new ways to influence public policy. Washington state offers exceptional opportunities for politics to affect selection of judges.
While it hasn't happened egregiously here yet, two primary avenues open the way — unlimited campaign contributions and unfettered gubernatorial appointments.
First, we are one of only four states that elect judges, yet place no limits on the amount one person or entity can contribute to a judicial candidate's campaign. That lack of limits helped enable Jim Johnson to receive more than $400,000 compared with the $156,000 raised by his opponent, Mary Kay Becker, in their 2004 race for an open state Supreme Court seat.
The fund-raising advantage allowed Johnson's campaign to run two television ads that aired a total of 222 times. In a race decided by a 52.7 percent to 47.3 percent split of the vote, those television ads and additional funds raised may well have affected the outcome.
In 2001-02, the top fund-raiser won in 20 of 25 state supreme court races nationwide, according to a study by New York University's Brennan Center for Justice. In 2002, according to the center, the candidate who spent the most on TV ads won in nine of 11 state supreme court races nationwide in which TV ads were run.
Campaign contributions are especially significant in judicial elections. Candidates for judge are prohibited by ethics rules from speaking extensively about their views on specific issues. As a result, voters have more difficulty becoming informed about judicial candidates, which in turn increases the importance of name recognition in an election campaign.
Second, because judicial vacancies often occur between elections, more than half of Washington's judges were initially appointed by the governor. Of the 31 current state Supreme Court and Court of Appeals judges, 16 were first appointed by the governor. Of the 179 current Superior Court judges, 103 were first appointed. Because incumbent judges are rarely defeated, a governor's appointees generally remain in office.
In appointing judges, no law limits the governor's discretion. We depend solely on the integrity of our state's elected leaders to make appointments based on competence. Nothing else prevents partisan considerations from taking precedence.
Our state has been fortunate to enjoy a high-quality judiciary, free of the incidents of outside influence occasionally found in other states. To ensure we sustain a high degree of judicial independence, the Washington Defense Trial Lawyers has joined with the King County Bar Association, the American Judicature Society, the League of Women Voters, the Municipal League, and other groups to form a task force to explore alternatives to our state's current judicial-selection process.
Limiting campaign contributions is certainly one of the alternatives to be explored. Another is the establishment of a merit-selection commission. Such a commission would nominate judicial candidates based on their professional qualifications and forward a short list of recommendations to the governor, who could only make appointments from that list.
To reduce the likelihood of political standoffs like the U.S. Senate's, merit-commission members would be nominated from both the legal and non-legal communities. The commission would be nonpartisan.
Merit selection is widely used across the country. A total of 24 states use merit selection to choose supreme court judges, while 21 use election.
Key studies also support merit selection. In its 1996 report on Washington state's judicial-selection process, the Walsh Commission recommended a merit commission for judicial nominees. So did the American Bar Association in its nationwide 2003 report on state judicial selection.
An independent judiciary is one of the cornerstones of state and federal government. While elected legislators and the governor are expected to have a political agenda, judges must administer the law free of outside influence. When politics plays a role in selecting judges, there is invariably the appearance of bias. In our system of government, appearance of fairness within the judicial branch is as important as fairness in fact.
We're fortunate that Washington's judges have managed to avoid political influence and maintain such a high degree of impartiality. We should give them every opportunity to continue their high standards of fairness in the future, without the risk of political or special-interest influence.
Jeff Frank is the immediate past president of the Washington Defense Trial Lawyers and a partner in the law firm of Bullivant Houser Bailey in Seattle.