The hallmark of our American judiciary has always been impartiality. That impartiality is increasingly coming under attack as political parties and special-interest groups seek new ways to influence public policy by sponsoring judges thought to share their social agendas. But as Alexander Hamilton observed early in our nation's history, if judges were subjected to partisan elections, "there would be too great a disposition to consult popularity" rather than relying on the Constitution and laws of our nation.
Courts maintain their legitimacy, not only by fairness in fact, but also by maintaining an appearance of fairness. Even if the judges in Washington continue their tradition of fair and impartial decision-making, as more money flows into judicial campaigns it becomes more difficult to maintain the appearance of fairness. We should therefore consider alternatives to our current system of electing our state court judges.
Special Interest Money and Political Influence
Finding information about judicial candidates and their qualifications is difficult and, given the rather dull nature of a judicial election, there is a tendency for the electorate to simply ignore these races. These practical realities create conditions ripe for special interest influence through campaign contributions - a fact not lost on judges or the citizens who elect them.
A 2004 poll sponsored by the Justice at Stake Campaign indicated that 71 percent of all Americans, and more than 80 percent of African Americans, believe campaign contributions influence judicial decisions.1 Perhaps even more disturbing was the data collected in 2002 from a questionnaire in which more than 2,400 state court judges responded. Forty-eight percent of the judges polled felt a "great deal" of pressure to raise money during election years. When asked how much influence contributions had on the decisions these judges render from the bench, 4 percent said "a great deal of influence," 22 percent said "some influence" and 20 percent said "just a little influence."2 It is not surprising that the public questions whether the judiciary can be fair and impartial when the judges themselves feel some pressure as a result of campaign contributions.
Despite recent legislation limiting judicial campaign contributions, special interest money will likely continue to flow into the races for positions on our appellate courts. In fact, two political action committees have already been formed to support candidates for these elections. These PACs will likely spend significant money on independent expenditures in support of their chosen candidates. There are no limits on such expenditures, which can take the form of attack ads similar to those that flooded the media last year during the I-330/I-336 initiative debate.
While Washington voters might view such attack ads with disfavor in judicial races, it would be na•ve to think such races will not be shaped through subtler means by special interests. And make no mistake: politics have already been injected into this year's appellate court races.
Last month, State Sen. Steve John-son (who is running against incumbent Supreme Court Justice Susan Owens) and Division I Court of Appeals candidate Jeff Teichert (who is running against Judge Mary Kay Becker) both announced they would not participate in the King County Bar Association's candidate evaluation process. In a letter to the KCBA, Sen. Johnson noted:
The Supreme Court is a nonpartisan office, yet the people you choose to evaluate candidates for the Court are themselves partisan activists - and heavily tilted toward one side of the partisan scale at that! 3
On his Web site, Mr. Teichert lists the Republican parties of Whatcom, Skagit and Island counties among his endorsements, but also includes this ominous warning in a footnote:
**Although Jeff is honored to have the public endorsement of political parties, the election of judges is non-partisan and he is faithfully committed to impartial justice.4
Incumbents have also joined the partisan fray, with Chief Justice Gerry Alexander promoting endorsements from three of the top labor unions in the State. The Tacoma News Tribune opined this might have been in response to Alexander's challenger, John Groen, who reportedly mentioned property rights four times when speaking to the Republican state convention. Alexander spoke at both the Republican and Democratic conventions and said a judge should have no agenda.5
The injection of politics into these races, whether directly or with putative disclosures, suggests a stark shift in how candidates for our appellate courts will conduct themselves this year, and in future election cycles.
Alternatives to Privately Financed Elections
One mechanism used to limit political and special interest influence is public financing of judicial elections. North Carolina adopted such a system after a particularly contentious and partisan supreme court race in 2000. So far it is the only state that has adopted public financing, but initial reports suggest it is working well. (Ed. Note: Please see article on Page 10.)
Another alternative is the establishment of a nonpartisan commission to nominate judicial candidates based on their professional qualifications and merit. The commission would forward a short list of recommendations to the governor, who could only make appointments from that list. Although keeping politics out of these systems has been a challenge in other states, that experience should not dissuade others from devising a system that would assure fairness and impartiality, the same qualities we expect from our judges.
Maintaining Independence
An independent judiciary is a cornerstone of our system of government. While elected legislators and the governor are expected to have a political agenda, judges must administer the law free of outside influence. When politics plays a role in selecting judges, there is invariably the appearance of bias. In our system of government, appearance of fairness within the judicial branch is as important as fairness in fact.
We are fortunate that Washington's judges have largely avoided obvious political and special interest influence to maintain their impartiality. We should give them every opportunity to continue their high standards of fairness in the future, without the risk of undue political or special-interest influence.
Jeff Frank serves on the Defense Research Institute's Judicial Independence Task Force and is the immediate past president of the Washington Defense Trial Lawyers. He is also a shareholder in the law firm of Bullivant Houser Bailey P.C. in Seattle.
1 Zogby International Survey in 2004 (available at http://www.justiceatstake.org/files/ZogbyPoll FactSheet.pdf).
2 Greenberg, Quinlan, Rosner Research, Inc., State Judges Questionnaire, November 2001-January 2002 (complete results available at http://www.justiceatstake.org/files/JASJudgesSurveyResults.pdf).
3 Postman, "Supreme Court candidate doesn't want Bar rating," Seattle Times Online edition, June 8, 2006.
4 See endorsements page of Jeff Teichert's Web site - http://jeffforjudge.com/endorsements.html.
5 "High Court Contest Turns Ideological," The Tacoma News Tribune Editorial, July 9, 2006.
