Former U.S. Supreme Court Justice Sandra Day O'Connor and Washington Supreme Court Chief Justice Gerry Alexander disagreed: O'Connor thinks all judges should be appointed, rather than elected. Alexander thinks the Washington system of an elected judiciary is just fine.
The two sat side by side in a panel discussion at Seattle University Law School's Conference on State Judicial Independence — for which O'Connor delivered the keynote address — attended by lawyers, law students, and an impressive collection of state and federal judges. Present and former chief justices of five state supreme courts sat on various panels. O'Connor got a couple of standing ovations.
The moderator for her first panel appearance, former U.S. Attorney for Western Washington John McKay, one of the U.S. attorneys forced out by the Bush Justice Department for political reasons, got a big round of applause himself when he observed that he and O'Connor had something in common: She retired from the Supreme Court in 2006, and was retired from the Justice Department that same year. (People also liked it when McKay, who now teaches at Seattle University, noted that among her many other distinctions, O'Connor was in the Cowgirl Hall of Fame.)
The conference was the nation's first concerted look at the issue of judicial elections since the U.S. Supreme Court decided the case of Caperton v. Massey in June. For those who missed Caperton: One West Virginia coal company and its owner sued another for allegedly using fraudulent practices to drive it into bankruptcy. A jury awarded the plaintiff $50 million. The losing company's owner gave a whole lot of money, virtually all of it through independent political organizations, to a candidate for the state's highest court. The candidate won. Then, sitting as a judge, he refused to recuse himself from a rehearing of the case and subsequently joined a 3-2 majority that overturned the old verdict. The U.S. Supreme Court decided 5-4 that this violated the constitutional right to a fair and impartial hearing. The court found no evidence of a quid pro quo, but said the probability of bias was so strong that the judge shouldn't have heard the case.
The facts may seem over the top but, O'Connor said, “these unseemly fact patterns are becoming commonplace.”
Bert Brandenburg, executive director of Justice at Stake, suggested that once the Court decides the recently argued Citizens United case, which is widely expected to reduce limits on corporate campaign spending, the problem of money in judicial elections will probably increase.
As Washington State Rep. Jamie Pedersen, D-Seattle, pointed out, efforts by big vested interests to influence state supreme court races came to Washington when the Building Industry Association of Washington poured money into current Justice Jim Johnson's campaigns, losing narrowly the first time (his first opponent, Justice Mary Fairhurst, was in the audience) but winning the second.
This is small-time stuff compared to what has happened in judicial races farther east. “You haven't suffered from this too much in Washington,” O'Connor said, “but you will.”
O'Connor pointed out that the framers of the U.S. Constitution thought judges should be appointed, as federal judges always have been, and her position was that if it were good enough for them it should be good enough for us. She, like other opponents of judicial elections, favors a system in which a commission — not composed entirely of lawyers — recommends several acceptable candidates to the governor, who picks one. This is often referred to as a merit system. “I would hope that we would not refer to appointive systems as merit systems,” said the very feisty chief justice of the — elected — Wisconsin Supreme Court, Shirley Abrahamson.
Whatever you call the alternative to judicial elections, “there has to be a place,” O'Connor said, “where being right is more important than being popular.”
No one really disagreed with that premise, but Abrahamson said that in her experience there wasn't really a conflict; in Wisconsin, “good judging is good politics.” Abrahamson thinks judicial elections are just fine.
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