Hands off the courts, governor

WHEN the Founding Fathers designed our government, they placed special emphasis on the independence of the judiciary. It's something our current political leaders should remember.

Gov. Christine Gregoire announced she'll be dialing for big-dollar contributions to her favorite political-action committee to influence the course of this fall's Supreme Court elections. She has raised more than $250,000 to date, with some contributions in the $20,000 to $30,000 range and one of $100,000, all well above the $1,400 individual contribution limits to a candidate.

Contrast this with Gov. Gregoire's May 1, 2006, Law Day speech to a dinner hosted by the Washington State Trial Lawyers Association. There she proclaimed judges should not be for sale and that large contributions to judicial campaigns threaten an independent judiciary. This comes from a governor who raised more than $6.3 million for her own election, $4.64 for every vote she received. By contrast, the most money raised by a Supreme Court candidate in that same statewide election was $539,000, only 46 cents per vote, little more than a postage stamp. She outspent the "big spending" Supreme Court candidate 12 to 1, and now worries the court is for sale?

I do share her concern about any threat to an independent judiciary. But we must recall the independence about which we speak is independence from the legislative, and particularly the executive, branch, not the general public.

Our Founding Fathers understood very well what an independent judiciary is and why we need it. They were students of Baron de Montesquieu's 18th century treatise, "The Spirit of the Laws," where Montesquieu stressed the importance of keeping the judicial branch out of the executive's hands. "There is no liberty," he wrote, "if the judiciary power not be separated from the legislative and executive."

This concern was also reflected by the signers of the Declaration of Independence. James Madison wrote in "The Federalist Papers," "The accumulation of all powers legislative, executive and judiciary in the same hands ... may justly be pronounced the very definition of tyranny," and cast the judiciary as the guardians of our Constitution so it would not be rendered a "mere demarcation on parchment."

Thus, when Gregoire involves herself in judicial campaigns, she is undermining this branch's independence by sending an unmistakable message to members of the judiciary: Stand up for private rights against government encroachment and she'll raise big bucks to replace you, and vice versa.

By far the most frequent litigator before the Washington state Supreme Court is the state of Washington itself. Normally, these litigations pit the government against a private citizen or some group of private citizens. It is the job of the judiciary to protect the rights of all litigants, and that sometimes means protecting individuals from governmental excess. An independent judiciary therefore must be willing to say no to the government, or Gov. Gregoire, when the law requires it. While that may not make many friends in the governor's mansion, it is essential to preserve a free society. There is no place for the governor's thumb on the scales of justice.

It is also noteworthy that Gregoire publicly advocated capping contributions to judicial campaigns at $1,400 per person per election and signed a bill into law to that effect; whereas she is now soliciting large contributions to a political-action committee for which the law imposes no contribution limitations whatsoever.

These "independent expenditure" committees pose another problem. While judicial candidates must stand behind the truth and accuracy of their campaigns not only in a moral sense but also because legal ethics require it, a political-action committee is not required to be honest when it makes last-minute media buys for attack ads.

I fear there is a hidden agenda here, an agenda to undermine the interest we all have in a courageously independent judiciary that will protect all our legal rights; yes, even when threatened by the government itself. Even in a state which elects its judiciary, 70 percent of all sitting judges began their judicial career with an appointment from the governor.

Gov. Gregoire, I think you've already had plenty of influence over who sits on the courts. Hands off these elections. This is the time the people, not the governor, decide who sits on our courts.