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.
Texas Chief Justice Wallace Jefferson does not. Texas has partisan judicial elections: If you just vote the complete Democratic Party ticket, you'll vote in all the Democratic judicial candidates. The system of electing judges there is basically “a business,” Jefferson said, and it has aspects that he called downright “sleazy.” He'd prefer a different system.
During one question period, former Washington Gov. John Spellman walked up to an audience microphone using a cane and made it clear that he still favored judicial elections. He appointed plenty of judges, he said, and he thought the idea of a committee putting forward names of suitable candidates had its limits. He recalled one time when he had to appoint a judge in central Washington. A bar association committee sent him a name. He called someone in central Washington to check on the person who had been recommended. “He's a good man,” said Spellman's source on the scene, “except he's going to be indicted very shortly.”
“I favor the system we have right now,” Alexander said, although “it does need to address the fact of large amounts of money coming into the system.”
How could one do that without scrapping elections? There seemed to be a lot of agreement: stricter rules for when a judge must recuse herself; better information in voters' pamphlets and elsewhere about judicial candidates. Public financing of judicial elections wouldn't hurt, although not many people bothered talking about it. Pedersen noted that two public financing bills have died in committee — no one is interested in finding a new way to spend money. A number of speakers talked about better public education. This last is a passion of O'Connor's, who wants to “restore civics education to our nation's schools." (She has worked with historians, legal scholars, game designers and others to develop instructive games geared toward middle schoolers. Find it at this site.)
In this state, despite the earnest recommendations of various committees and commissions, the discussion of grander reforms may be largely irrelevant. As a couple of speakers pointed out, most of our judges essentially are appointed now: When a judge leaves the bench — because of retirement, death, a better job, whatever — the governor appoints a successor. When the successor runs for office, he or she is almost never defeated. In fact, he or she is seldom even opposed. So while the public does get to decide, voters virtually always choose someone who has already been appointed — if they vote at all. As several speakers noted, most people say they want the opportunity to vote for judges, but few bother doing it. The governor makes that initial appointment for reasons known only to herself. Advocates of a commission system say that process would be more open.
But you don't hear many people clamoring for change. Alexander noted that state polls show 82 percent believe we have good judges. When a committee of the Washington State Bar Association recommended changing to a commission system, the full association didn't endorse the finding. Alexander said he talked to people in Olympia about the idea and found it was regarded as “kind of a yawn.”
A change in the way Washington picks its judges would need a constitutional amendment, which would require two-thirds votes in both houses of the Legislature and then a vote of the people. Because the issue isn't even on most people's radar screens, that's not going to happen.
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