Electing Judges

One of the most enjoyable parts of my job as presiding judge is meeting with lawyers, legislators and judges from other countries. I have had the opportunity and pleasure of meeting with persons from Asia, Africa, Middle East, and from many countries in Europe. We generally begin with a discussion of our court structure, but when we have that formality out of the way, the issue of judicial elections engages these visitors more than any subject, other than the details of our jury system.

Most of my visitors seem genuinely puzzled, even baffled, by the fact that we elect judges. The easy answer of course, is that our state constitution (Article II, Sections three and five) require the election of judges of the Supreme and Superior Courts.

According to The Washington State Constitution, A Reference Guide, by Justice Robert Utter and Hugh Spitzer (p.100), the issue of election or appointment was “heavily debated” at the constitutional convention. One of the reasons that election may have won out was that, according to our current Chief Justice Alexander’s article “The Courts of the Washington Territory: 1853-1889,” (Bar News, November 2003), many of the territorial judges were not Washington Territory residents, a circumstance that apparently did not find favor with our constitution’s framers.

The question, however, may not be so much why we have elected judges in the past, but why we continue to elect judges. In 1996 the Walsh Commission recommended that citizen based “nominating commissions” create lists of qualified prospects for judicial office to be used by the governor or other appointing authorities, but the Commission chair stressed that “…in no way did this Commission ever feel that this state is in a crisis, in the method in which it selects judges…Far from it--we came together…feeling that there was a very fine judiciary…Our goal was to find if there was a way to make it better--to make it in fact the best possible system for selecting judges.”

Citizen commissions making recommendations would not be much of a change unless the ap-pointing authority was required to select from a commission list, or the commission had sufficient credibility to make its recommendations authoritative.

The Commission included, among nine recommendations, minimum residency and professional qualification, a judicial performance evaluation, campaign contribution and expenditure limits and a combination of open and retention elections.

There does not seem to be much support, or at least no active support, to change from elected to appointed judges, or even to change to retention elections. Presently thirty-seven of the fifty-one judges of the King County Superior Court were initially appointed, but that will change this month when four elected judges replace retiring judges who were initially appointed, increasing the number of judges initially elected to the court, but there remains a 2:1 ratio of appointed to elected judges.

We do now have a judicial voter pamphlet which, based on a very unscientific poll that I conducted, is seen as helpful and is used by voters in selecting judicial candidates. Other recommendations of the Commission have not been implemented.

The major complaint that I continue to hear from non-lawyer voters is the lack of information about judicial candidates, and their inability to identify the most qualified candidate. Most of you have relatives and clients who call you each year for your recommendations on judicial candidates and surely there are many more voters who do not know a lawyer well enough to call for voting advice.

One step that might be taken to increase voter information would be a voter pamphlet distributed in time for use by absentee voters, including more candidate information.

The Commission recommended limits on campaign contributions and expenditures, a controversial subject. If there was sufficient public information on judicial candidates the influence of money would at least be diminished.

Candidates, including incumbent judges, also need clarification of the rules on permissible speech in judicial elections.

When I try to explain our judicial election process to our visitors from other countries I usually comment on the western expansion of our country, the populism that Utter & Spitzer believe affected our constitution, and the continuing independence of American voters in general and Washington State voters in particular.

I think there still exists in this State a belief by our electorate that they do not need a commission to tell them what judges they should have--they want to make that decision themselves. Our charge is to ensure that there is enough relevant information, generally available, to make that choice as intelligently as possible.