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Race: one problem with electing judges

Washington state's current Supreme Court justices Credit: State of Washington

I did a double take when first checking The Seattle Times website for breaking election results the evening of Tuesday, August 7. By 8:30 p.m., in the race for Washington Supreme Court Position 8, the votes of 87,000 Washington citizens had been counted for Bruce Danielson, who had not campaigned for the position. Even worse, at that moment he was leading incumbent Justice Steven Gonzalez by nearly 16,000 votes. 

I then realized that the early returns were mostly from Central and Eastern Washington. I felt mixed emotions. On the one hand, I was relieved that populous King County — where then-Judge Gonzalez spent 10 years on the Superior Court bench — had not yet submitted its results. 

But I was completely dismayed that more than 87,000 voters — which when all was said and done became 438,867 voters — chose Danielson, an unqualified candidate for our state’s highest court. Tragically, many of those 438,867 citizens chose Danielson over Gonzalez because one of the candidates has a Latino surname. Let me explain.

Justice Gonzalez beat Danielson in Kitsap County — Danielson’s home county — by a landslide. He should have won in a landslide across the state. 

Justice Gonzalez relentlessly campaigned across the state. He was rated “exceptionally well qualified” by eight organizations and was endorsed by the editorial boards of major newspapers throughout the state. Danielson, on the other hand, refused to be rated and did not campaign. He was even rejected by the community that knows him best; in fact, in a Kitsap County bar poll, the lawyers chose Justice Gonzalez by a margin of 90 to 2.

Justice Gonzalez also enjoyed broad bipartisan support, receiving endorsements from both gubernatorial candidates — Rob McKenna and Jay Inslee — and both attorney general candidates — Bob Ferguson and Reagan Dunn; not to mention 300 judges statewide. It is no surprise that Justice Gonzalez raised a record amount of money for a judicial primary. 

As for Danielson, his candidacy simply had no support, for lack of effort.  Danielson did not participate in a single candidate forum or endorsement interview, nor did he raise a dime for his campaign.

But campaigns aside, the candidates were incomparable on the merits. Justice Gonzalez served for 10 years as a Superior Court judge and, at times, was named “Judge of the Year” by numerous organizations. Gonzalez speaks four languages, received his law degree from U.C. Berkeley, and had a decorated career as an attorney in private practice and as a federal prosecutor before he became a judge. 

By contrast, Danielson’s career seems unremarkable by any measure. He has lost multiple races for Kitsap County Superior Court and Kitsap County prosecutor. In fact, multiple organizations rated Danielson unqualified to serve on the Supreme Court.  On the merits: Judge of the Year vs. Unqualified Candidate.

And yet, despite Justice Gonzalez’s tireless campaigning and distinguished career, Danielson won the vote in 29 counties, while Justice Gonzalez won only 10. Defying all logic, Danielson even out-performed McKenna in some counties. So, what is going on here?

Before becoming a state, Washington was a designated territory for 36 years. During these years, Washington’s judges were appointed by the president and confirmed by the U.S. Senate. The territory’s residents complained that these appointed judges — sent from the far-flung corners of the country — had no experience with Washington’s territorial laws and were completely unfamiliar with the local customs and rules of practice. 

The judiciary, it was thought, should derive its power directly from the voters instead of other branches of the government that would undoubtedly fill the bench with loyal party members, rather than qualified jurists. Thus, when Washington became a state in 1889, the delegates to Washington’s constitutional convention resolved that the state would elect its judges. In fact, that decision was part of a nationwide trend: Every state that has entered the union, beginning with Iowa in 1846 through Alaska in 1959, has opted for judicial elections of some form. 

Today, Washington is one of 30 states that elect all or some of their judges, and one of only 12 to do so in a nonpartisan manner. The Washington Supreme Court has nine justices, who serve staggered six-year terms. Therefore, three are up for election every two years. For a mid-term vacancy, the governor appoints a successor who must then be elected in the next election in order to retain the seat.

Through the 1980s, Washington’s Supreme Court elections were relatively boring affairs. Most judges reached office by appointment and never faced a contested election. 

Then, in 1990, a largely unknown man by the name of Charles Johnson challenged Supreme Court Chief Justice Keith Callow, a well-respected and highly qualified jurist. Johnson defeated Callow without spending any money or doing much campaigning. As it turns out, Justice Johnson is a good justice and has kept the seat to this day. (In the meantime, Justice Jim Johnson most certainly gained advantage from his shared last name, which connoted incumbency in his election in 2004.) 

Since Justice Charles Johnson’s victory, hotly contested, PAC-funded elections have become commonplace. Still, so-called “stealth” candidates — often under-qualified with lackluster credentials — file at the last minute and do little or no campaigning, relying instead on other factors, such as a “good” last name, ballot placement or just sheer luck of the draw.

If there was ever a “stealth” candidate, Danielson fits the bill: He filed an hour before the deadline and simply did not campaign. It appears that he was hoping to slip by — and troublingly, in 29 counties, he did just that. Fortunately, Justice Gonzalez became the first person with a Latino surname in Washington history to win a statewide race, capturing 60 percent of the vote once all of the votes had been counted. 

But it makes you wonder: Danielson still received 40 percent of the state’s votes.  Why?

With nothing on the election ballot but a name, many believe that Justice Gonzalez’s ethnicity played a role.  According to Matt Barreto, a political science professor at the University of Washington, “A consistent finding in the research is that minority candidates, all other things being equal, are evaluated less favorably by the voters.” 

Indeed, a recent study in the Akron Law Review by Ric Simmons found that this phenomenon is not unique to Washington. Nationally, Simmons states, “Assumptions voters make about the candidate based on the name of the judge (e.g. the candidate is a woman or Jewish or of Irish descent) … have a strong influence on voters’ decisions.” 

According to exit polls and similar studies, citizens rarely have any knowledge about judicial candidates, including their names, and have precariously little information upon which to base their decisions. In other words, all things are often equal — most voters are equally ignorant. This was compounded by the fact that only four Washington counties paid to publish and mail voters’ pamphlets for the primary election this year. Interestingly, Justice Gonzalez ran best in all four of these urban, Western Washington counties, including King.

In the abstract, it makes sense that citizens vote for judges in a vacuum. What should the electorate use to gauge the candidates? Indeed, the ideal judicial candidate would be one with no affiliations, no partisan background, and no opinions on controversial issues; impartial, free of prejudice, and able to decide cases on the merits without regard to his or her own interests. 

Milquetoast statements such as, “My background is diverse and personal life experiences will enable me to approach the Court with a unique perspective, understanding, and empathy,” offered by a 2008 Ohio Supreme Court candidate, hardly say anything about a candidate’s familiarity with the law. Nor does the other campaign fodder offered, such as how many children or grandchildren they have, how long they have been married, or how many animals they own.

Unfortunately, the gaps created by such bland statements are increasingly filled by sensationalist PAC attack ads that distort the credentials of the candidates and focus instead on high-profile political issues that make up a very small percentage of cases to be decided. 

Indeed, the trend of spending exorbitant amounts of money on attack ads in judicial races — essentially the only way to stand out as a judicial candidate — appears to be gaining momentum. In 2006, the total funds raised by Washington Supreme Court candidates exceeded $5 million, a fourfold increase over the prior year. 

But what is more important, the three top political action committees in our state — Citizens to Uphold the Constitution, Building Industry Association of Washington, and Americans Tired of Lawsuit Abuse — spent more than $2.6 million on the Supreme Court campaigns alone (exclusively supporting right-leaning, Caucasian, male candidates), representing 47 percent of all independent expenditures made in Washington that year. The plaintiffs’ bar in Washington is not without financially clean hands either.

These groups, not the candidates’ campaign committees, paid for all of the television advertising related to the Washington Supreme Court elections. Indeed, as Justice Charles Wiggins — before being elected to the bench — wrote for the Bar Bulletin in 2007: “Private interests can threaten judicial independence by influencing judicial elections. The primary tool of private interests is the power of the purse."

On the other hand, as returning Supreme Court candidate Richard Sanders believes, “[N]o private person or group can possibly threaten judicial independence because the independence about which we speak is independence from the executive and legislative branches of government—not independence from the private sector."

Sanders — who also may have benefited from a “simple, mainstream-sounding name” in his initial election — is certainly correct about the need for judicial independence vis-à-vis other branches of government. But he is flat wrong that a person or group cannot threaten judicial independence, especially because “persons” now includes corporations, according to the U.S. Supreme Court in Citizens United v. Federal Election Commission.

In any event, judicial campaign finance is an acute appearance-of-fairness issue. Justice Sandra Day O’Connor wisely wrote upon her retirement: “When you enter one of these courtrooms, the last thing you want to worry about is whether the judge is more accountable to a campaign contributor or an ideological group than to the law.”

That brings us back to the issue of race. Because African Americans, Latinos and Native Americans are disproportionately poor, they contribute significantly less money to political campaigns than European Americans. Knowing this reality, candidates, including judicial candidates, generally care less about ethnic minorities’ electoral interests. In turn, racial minorities may feel further marginalized such that they disregard judicial elections altogether and, if or when in court, they disproportionately fear that a judge is more accountable to majority or corporate ideology than to stare decisis or the rule of law.

Further muddying the waters, most voters are not experienced in the law and have little knowledge of the criteria that make for a “good” judge. The responsible voter instead determines that casting no vote on the subject is better than, say, evaluating a judicial candidate based on how many grandchildren he has. This, too, is reflected in the numbers. Generally, about one in four voters who cast a ballot fails to vote in Supreme Court elections.

Even more telling in Justice Gonzalez’s election numbers is his showing in the four counties that published printed voter guides listing his contest. In the other counties, the voters were very likely, barring independent research, casting their ballots based purely on the Supreme Court candidates’ respective European and Latino last names. 

The good sport that he is, Justice Gonzalez offered the following statement for this piece: “Improving judicial elections is crucial for our democracy. The lack of a voters’ pamphlet for the primary in most of the state was very unfortunate. With better information, voters make better choices. I look forward to serving the entire State of Washington and working to ensure that we have an informed electorate.”

Add, finally, into this debate the utter lack of elected representation for minorities in most areas of the state. The combined Latino population for 10 counties in Central and Eastern Washington, for example, is a bit higher than 33 percent. Yet, Latinos hold only 4 percent of those regions’ elective offices and not a single Latino lawyer has ever been elected to the bench in Eastern Washington. The same goes for Native Americans, who have yet to see an Indian judge elected to the state bench anywhere in Washington.

All of this begs the question: Is it time for Washington to re-evaluate whether our justices should be selected by popular vote?  I think so.

Originally published in the October 2012 issue of the King County Bar Association Bar Bulletin. Reprinted with permission of the King County Bar Association. Copyright 2012.

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