By Charlie Wiggins

A judicial system that overemphasizes the fortuity of appointment but lacks campaign controls when seats are up for election has prompted a number of bar groups in Washington to form the Judicial Selection Coalition to explore problems and seek solutions.1

Currently, more than half of Washington’s sitting judges were appointed by the governor, including 16 of 31 appellate court judges. Of the 15 who were elected, only four defeated an appointed incumbent. In Superior Court, 103 of the 179 judges were appointed.2 Appointed judges also tend to win subsequent election.

No law or constitutional provision limits the governor’s discretion. This is a cause for concern, but Washington has been fortunate to date that no governor has used his or her discretion to place partisan or personal considerations above the merits of the respective candidates for appointment.

Twenty-four states select supreme court judges through a commission system under which a panel submits a list of candidates to the governor, who must appoint from the list. Of the 21 states that elect supreme court judges, nine use a commission system to fill vacancies. Washington’s own Walsh Commission studied judicial selection in Washington in 1995 and in its 1996 report recommended using a commission system for the initial selection of judges.

Campaign Finance Concerns
Another major concern in Washington is the increasing importance of money in judicial elections, particularly at the Supreme Court level. Total spending by Supreme Court candidates was up 27% last year from 2000, even though fewer candidates ran in 2004. Average spending per candidate has increased almost 50% since 2000, and median spending per candidate has doubled since 2000.

Washington’s Supreme Court election in 2004 also witnessed large contributions by special interests. The effect of growing amounts of special-interest money on judicial campaigns has increased concerns over the potential lack of impartiality in the judicial selection process. Business Week commented in 2004 that “the same bitter polarization that has poisoned presidential and congressional politics is starting to seep into the one branch of government that is supposed to be immune from it” as “special interests are increasingly turning to the courts to advance goals they can’t win legislatively.”

Curbs Needed
The Walsh Commission also recommended the adoption of campaign finance limits in judicial races. Washington is one of only four states -- Illinois, Minnesota and Oregon are the others -- that elect judges but do not limit campaign contributions.3

Unlike executive and legislative races, Washington’s campaign finance laws do not apply to judicial positions.4 This means judicial elections are not subject to the rules limiting contributions from individuals, PACs, unions and businesses to $1,350 per election for a statewide executive office candidate and $675 per election for a legislative candidate.

Large campaign contributions from special-interest groups undermine the public confidence in the judiciary that is essential to the credibility of the courts. Legislators and executive officers are expected to have an agenda and an ideology, but judges are required to administer the law impartially and independently. Nearly 71% of Americans believe that campaign contributions have at least some influence on judicial decisions, according to a 2004 nationwide survey of 1,204 adult Americans conducted for the Justice at Stake Campaign.

Legislative Proposals
These and other concerns have led to efforts to improve upon the status quo. In the 2005 legislative session, Senate Bill 5015 would have created a nonpartisan judicial selection commission to fill vacancies on the Supreme Court and the Court of Appeals. The commission would have submitted three names to the governor and the governor would have appointed from the list.

Upon the recommendation of several Coalition organizations, Sen. Jacobsen, the sponsor of SB 5015, modified his proposal to create separate commissions for each division of the Court of Appeals and to increase non-lawyer membership of the commissions, resulting in a new bill, SB 6048. Neither SB 5015 nor SB 6048 was passed out of the Senate Judiciary Committee in the 2005 session. However, similar bills are likely to be introduced in the next legislative session. The 2005 bills and the discussion they spawned were a valuable wake-up call to many voters and politicians regarding the problems with our state’s current judicial selection system.

House Bill 1226, also introduced in the 2005 session, would have extended campaign finance limits to judicial elections. The bill was strongly endorsed by several Coalition members and was passed by the House and then by the Senate Government Operations Committee. But it was not brought up for a vote in the Senate.

The Washington Chapter of the American Judicature Society also is developing a proposal to adopt a statewide citizen-based judicial evaluation program by court rule. A committee of the AJS-Washington has worked for the past six years to develop an effective program of performance evaluations for Washington state judges.

For more information on these topics, visit the KCBA web site on developments and resources at http://www. kcba.org/judicial_selection/index.html.

1 The Coalition currently includes representatives of the American Judicature Society, the Asian Bar Association, the Defender Association, the King County Bar Association, the League of Women Voters of Washington, the Loren Miller Bar Association, the Municipal League of King County, the Washington Defense Trial Lawyers, the Washington State Bar Association, and the Washington State Trial Lawyers Association, as well as many concerned individuals.

2 Source: SCJA seniority list as of 1/24/05.

3 Source of information: http://www.ajs.org/ js/select.htm, accessed 12/31/2004.

4 RCW ¤ 42.17.020(39) defines “state office” to mean “state legislative office or the office of governor, lieutenant governor, secretary of state, attorney general, commissioner of public lands, insurance commissioner, superintendent of public instruction, state auditor, or state treasurer.” Judges are omitted from the list.