August 2006 Bar Bulletin
Screening Committee Takes Candidates' Stock
By David Strout and Terence Scanlan
The mission of the King County Bar Association's Judicial Screening Com-mittee is to improve the quality of the judiciary by evaluating the qualifications of candidates for judicial office.
The Committee is as diverse as the KCBA. Sixty-four of its 70 members appear regularly in the King County courts, the Court of Appeals or the state Supreme Court. They practice in private and public law firms of all sizes and as solo practitioners. They are commercial litigators, family law practitioners, prosecutors, public defenders, personal injury lawyers and insurance defense lawyers. Six members are not lawyers. Diversity is one of the selection criteria.
The evaluation process begins when a candidate seeking election or appointment to judicial office completes a detailed 20-page questionnaire. The first part covers employment history, nature and extent of law practice, judicial experience, trial experience and participation in bar and civic activities. If the candidate is running for office, this part of the completed questionnaire is available to the public on the KCBA Web site.
The second part of the questionnaire is confidential. It asks about the candidate's involvement in disciplinary matters and complaints asserted, or suits filed, against the candidate. The second part also requests the names of at least 56 references. Although a candidate may choose some preferred references, he or she must disclose past and present supervisors, attorneys who appeared before the candidate in the candidate's role as a judge, and judges and opposing counsel from the candidate's most recent trials.
After a candidate submits the questionnaire, KCBA emails all 70 committee members to announce the date of the rating session. The first 16 to 18 members to volunteer to participate comprise the panel that rates the candidate. This procedure results in randomly selected rating panels.
Each attorney on the panel interviews three or four of the candidate's references. Non-lawyer panel members do not perform reference checks. To encourage candor, the interviewer assures the reference that his or her comments will be disclosed only to other panel members at the rating session.
The interviewer uses a three-page questionnaire that touches upon ethics and all areas of professional competence, knowledge and experience. The interviewer inquires into the reference's experiences with, and knowledge about, the candidate and elicits the reference's opinions on the candidate's strengths and weaknesses. Because a reference's comments are never disclosed to a candidate, no candidate ever knows what information his or her references volunteered.
The panel interviews each candidate for approximately 30 minutes. The candidate is invited to make opening and closing remarks. The balance of the interview consists of questions pertaining to the candidate's qualifications for office and issues raised by reference checks or other information that the panel receives, including the candidate's questionnaire answers. In those rare cases when it arises, panel members discuss ahead of time any reference information that raises significant potential ethical or professional concerns and frame a question that will give the candidate a full and fair opportunity to address the issue.
After the candidate leaves the room, the panel members discuss the results of their reference checks and whether there is sufficient information to rate the candidate. If not, the panel places the candidate in the "Insufficient Informa-tion to Rate" category.
If it has sufficient information, the panel discusses whether the candidate meets the basic criteria set forth in KCBA's Rules and Procedures, which govern the Committee and its rating process. The KCBA drafted and approved the rules and procedures more than 25 years ago. From time to time, the Committee petitions the KCBA for a revision. Since January 2001, the KCBA has approved five revisions. Each revision was minor, but in some small way improved the rating process.
The criteria include, among other things, intellectual honesty, fairness, good judgment, a demonstrated commitment to equal justice, legal ability, capacity for hard work and the potential for ongoing professional development. After the discussion, the panel votes by secret ballot.
A candidate who, in the majority's view, does not meet the KCBA's basic criteria receives a "Not Qualified" rating. If the candidate is found to meet the basic criteria, a "Qualified" rating is given. Discussion then turns to whether the candidate should receive a "Well Qualified" rating. If less than two-thirds of the panel supports a Well Qualified rating, the candidate is rated Qualified.
If a Well Qualified rating is merited, the discussion turns to whether the candidate should be rated "Exceptionally Well Qualified." This also requires a two-thirds vote. After the voting concludes, all sensitive materials pertaining to the candidate, including all reference check notes, are destroyed.
The KCBA informs the candidate in writing of the rating. To foster a more informed electorate, the KCBA publicizes the ratings of candidates seeking office by election. It discloses the ratings of candidates seeking appointment only to the person empowered to appoint and only if the candidate is rated Well Qualified or Exceptionally Well Qualified.
Occasionally a candidate refuses to participate in the rating process.1 Whenever possible, the Committee rates these candidates, beginning with an email to the entire KCBA membership requesting information about the candidate's qualifications. The KCBA also requests information from other groups and individuals who might have relevant information. The Committee's co-chairs, sometimes with assistance from other Committee members, interview everyone who responds to these requests.
The threshold question in these cases is whether the panel has sufficient information. Without knowing the content of any of the interviews, the panel hears a report on the number of references interviewed and the bases for their opinions. Opinions from judges before whom the candidate appeared and opposing counsel are of more value to the panel than opinions of friends and supporters.
If the panel lacks adequate information, the candidate receives a "Refused to Cooperate in the Judicial Screening Process" rating. If the panel concludes that the references comprise a fair sampling of qualified and informed references, the normal process is followed, except for the interview.
The Committee is dedicated to providing the best possible information to enable voters, and those who appoint judges, to select the best judges for all of us. The rating process is, and must remain, confidential. Groundless complaints to the contrary notwithstanding, rating panels never discuss political issues or a candidate's opponent. Panels never compare a candidate to any other judge or candidate. A candidate's rating depends exclusively upon how the candidate measures against the KCBA's ratings criteria. The rating process is scrupulously fair and impartial.
David Strout is a partner at Bush Strout & Kornfeld. His practice emphasizes personal injury and professional malpractice litigation on behalf of plaintiffs. He can be reached at 206-292-2110 or by email at email@example.com. Terence Scanlan is a partner at Skellenger Bender. His practice emphasizes commercial litigation. He can be reached at 206-623-6501 or by email at firstname.lastname@example.org.
1 Recently, some candidates refused to participate claiming that the process is "political" or otherwise biased against them. Please see John Ruhl's article on Page 16, which responds to such recent criticism.