In 1780, John Adams drafted substantial portions of a new constitution for the Commonwealth of Massachusetts, including Article XXIX of the Declaration of Rights:
It is essential to the preservation of the rights of every individual, his life, liberty, property, and character, that there be an impartial interpretation of the laws, and administration of justice. It is the right of every citizen to be tried by judges as free, impartial and independent as the lot of humanity will admit.1
What does it mean for a judge to be as “independent as the lot of humanity will admit?” What threatens judicial independence in Washington today? And what is being done about it?
There is little serious debate that judges must be independent. But there is disagreement from whom they must be independent. In an editorial published in 2005, Seattle attorney Jeff Frank warned that judicial independence is threatened by special interest money flooding into judicial elections.2 Gov. Christine Gregoire sounded a similar warning.3 A very different viewpoint was expressed by Justice Richard Sanders: “[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.”4
In fact, this is not an either-or choice. Judicial independence must be protected from encroachment from both the private and public sectors, as the ABA report, “Justice in Jeopardy,” pointed out:
Although Adams extolled the virtues of judicial independence generally, it is possible to subdivide judicial independence into two distinct forms, both of which are instrumental to upholding the rule of law. First, judges must be independent enough individually to resist external efforts to influence inappropriately their decision making. In this regard, it is essential that a judge’s interpretations and applications of law be controlled by what she construes the law to mean, and not by what others would coerce or cajole her into saying it means. Second, judges must be independent enough collectively as a branch to resist institutional encroachments from the other branches of government that could place the judiciary—and the decisions its judges make—under the control of a political branch.5
Independence from Private Interests
Private interests can threaten judicial independence by influencing judicial elections. The primary tool of private interests is the power of the purse. Private interests try to influence virtually every type of election, both by financially supporting their candidates of choice and by negative campaigning against candidates they oppose.
We expect such campaign funding in the executive and legislative branches, and to some extent it has long been present in judicial elections. But the obvious difference between the judicial branch and the other two branches is that judges must be both independent and impartial. They cannot commit in advance to particular ideological or political party positions.
Thus, it becomes problematic when special interests select judicial candidates based on ideology and then commit substantial resources to the election of those candidates. Not only does this substantial private financing threaten to undermine judicial independence, it undermines public confidence in the impartiality of the courts. Nearly 71% of Americans believe that campaign contributions have at least some influence on judicial decisions, according to a nationwide survey of 1,204 adult Americans conducted March 17-19, 2004, by Zogby International for the Justice at Stake Campaign.6
Private money in Washington’s Supreme Court campaigns skyrocketed in 2006. In 2004, total contributions to all Supreme Court candidates surpassed $1 million for the first time, reaching just over $1.2 million.7 In 2006, that total almost quadrupled, reaching a total of $4.3 million. Of that total, only about 40% was contributed to the candidates and spent by the candidates themselves. Sixty percent of the total campaign funding was independently spent by political action committees. Thus, independent expenditures drove the election, primarily through an unprecedented onslaught of television advertising.
Washington is not an isolated case. Five of the 10 states with privately financed judicial elections in 2006 set records for candidate spending: Alabama, Georgia, Kentucky, Oregon and Washington.8 And where did the money come from? Nationwide, of the funds contributed to candidates, 44% came from business interests, with about 21% from lawyers.9
Recognizing this threat to judicial independence, two bills were introduced into the 2007 Legislature to offset the effect of this flood of private money. Gov. Gregoire and Rep. Shay Schual-Berke introduced bills that would have offered public funds to supreme and appellate court candidates who agreed to restrict private fundraising to strictly limited “exploratory funds” and “qualifying contributions.” Gov. Gregoire and Rep. Schual-Berke compromised to achieve a blended bill.
The blended bill, SHB 1186, would have prohibited candidates from accepting any contributions from PACs, businesses or unions. It would have permitted appellate/supreme court candidates to accept up to $10,000/$25,000 in exploratory funds, and required an appellate court candidate to raise 100 contributions of $10 each in qualifying contributions. Once qualified, a Supreme Court candidate would receive $70,000 for the primary and $140,000 for the general election. If a non-participating candidate received more support than this, or if special interests made independent expenditures that exceeded these amounts, the participating candidate would receive “fair fight funds” to match the opponent, up to a maximum of $678,000.
SHB 1186 would have gone a long way toward protecting judicial independence. The bill moved out of the House Government Operations Committee, through the Appropriations Committee, only to die in the Rules Committee. It was a great advance just to get the bill this far, and hopefully in the next session the Legislature will take the bill up and move it to the governor’s desk for signature.
Independence from the Legislative and Executive Branches
Another bill offered a different solution to preserve judicial independence. A number of legislators were alarmed by the amount of money going into judicial elections and proposed to change our judicial selection system. HJR 4223 and HB 2150, sponsored by Reps. Brian Sullivan and Jay Rodne, joined by Reps. Appleton, Sommers, and Ormsby, would have asked the people to vote to amend the Constitution to provide for appointment of supreme and appellate court judges by the governor. The companion House bill would have established a commission to nominate candidates for appointment by the governor. The bills were approved by the House Judiciary Committee, but died in the Rules Committee.
A nominating commission would help to solve the money problem by having an impartial and non-partisan commission to nominate a fixed number of candidates for appointment. The governor would then name the new judge from the list of nominees. After a fixed number of years, the judge would then stand for a “retention election” at which the voters would be asked, “Should Judge X be retained for another term in office?” The goal of a commission system is to minimize the effect of politics on judicial selection and to provide for a selection system in which candidates are nominated based on their qualifications and experience, not on simplistic television sound bites paid for by special interests.
A commission system presents its own issues of judicial independence. The inescapable question is, “Who picks the pickers?” The governor already has considerable power by virtue of selecting the judge from a list of nominees. If the governor also controls the selection of the commissioners, then the governor has practical control over the entire process. For this reason, most commission systems delegate the selection of the commissioners to a variety of different authorities. This divided system of appointment tends to minimize undue influence by any one appointing authority.
Including the details of the commission system in the Constitution also helps to protect judicial independence. If the commission system can be changed by legislative fiat, then the Legislature can ultimately control the selection process. There is an additional practical reason why the commission system should be part of the Constitution. It would be necessary to amend the Constitution to change judicial selection from a public vote to a commission system. If the voters are going to be asked to give up their right to elect judges — as opposed to a retention election — the voters should know exactly what system they are being asked to approve.
Advocates for either system of judicial selection — public election or a nominating commission — must consider seriously the threats to judicial independence presented by each system. We need to work together to improve the current election system or look to an alternative such as a commission system. Any system of selection must be measured against the plumb line of judicial independence and must be modified or designed to ensure that our courts remain free of outside control, whether by private or public interests.
1 American Bar Ass’n, “Justice in Jeopardy,” at 6 (2003).
2 Frank, “Finding a Way to Preserve Judicial Independence,” Seattle Times (7/1/05).
3 Speech, Gov. Christine Gregoire, Washington State Trial Lawyers Association Law Day Awards Ceremony (5/2/06).
4 Sanders, “Judge Election System Works Well,” Seattle Times (8/9/05).
5 “Justice in Jeopardy,” supra, at 8.
6 http://faircourts.org/files/ZogbyPollFactSheet.pdf.
7 See statistics available at www.pdc.wa.gov.
8 Sample, Jones and Weiss, “The New Politics of Judicial Elections 2006,” at 15 (2007) (available at www.justiceatstake.org).
9 Id. at 18.
