Imagine selecting judges without big money's stain

On Nov. 7, we will complete the election of three justices of the Washington Supreme Court, but it will not have been a pleasant process.

More than $2.1 million will be spent this year on these races, two of which were decided in the primary. The vast majority of that money came from independent organizations and industries, notably the powerful Building Industry Association of Washington, which has — simply put — been on a mission to buy a majority on the state Supreme Court.

The court already contains one justice elected with money from the BIAW and its allies, Jim Johnson. The building industry this year poured hundreds of thousands into the campaigns of challengers John Groen, defeated by Justice Gerry Alexander; and Steve Johnson, in a runoff against Justice Susan Owens.

Had they been successful with both Groen and Steve Johnson, it would give this powerful industry, which has a lot at stake in judicial rulings, a third of the seats on the court.

Justice Johnson and candidates Groen and Johnson would not be called to the phone for BIAW instructions on how to vote, of course. And presumably, all would be ethical enough not to simply vote on the basis of sponsorship of their last race. The point is, before they were selected for sponsorship by the BIAW, the association knew where they stood on issues of vital importance to BIAW, such as labor law, worker safety and a host of regulatory matters.

Other organizations and industries put money into these races, from labor unions to software designers, from pro-life to pro-choice groups. But none remotely approached the big bucks of the BIAW and its supporters.

Washington has a well-regarded Supreme Court, elected under the current system. But that system is under siege from big money and we need to think about that.

How are we to judge our judges? Even most lawyers never appear before the Supreme Court and rely on colleagues to critique justices. Voters decide on the basis of clever propaganda circulated by campaigns, select names that seem familiar or faces that look reassuring, and — if we are honest with ourselves — we have barely a clue as to what we are doing.

There is precious little objective information available. Newspapers are the best source, and most make at least an attempt to inform readers. Television is hopeless; the campaigns buried under an avalanche of house fires and car crashes. There is information on the Internet, often published by sources as biased as the BIAW.

Too many votes are based on slogans or clever wording in campaign literature. The buzzword this year is "property rights." Campaigns push labels (conservative, progressive, environmentalist, victims' rights, pro-life, pro-choice). But this is more applicable to legislative races than to judicial contests.

Good judges have something lawyers call "judicial temperament," meaning the ability to listen, absorb, consult and decide as part of a group of fellow judges. Some brilliant lawyers, giants of litigation and argument, lack this quality.

Under our present system, the main qualifications for judicial office are a source of campaign funds and a thick skin, overriding judicial skill and temperament.

How to take the money out of judicial races, while maintaining accountability and judicial quality and a role for voters?

Some states have installed a version of the so-called Missouri System, named for the state where it originated, which combines original appointment with voter review at the end of a set term.

Appointment is generally by a bipartisan committee, usually a mix of lawyers and laypersons, reflecting a variety of backgrounds and views but all of high integrity and ability. This committee would take applications and select a judge. Approval by the state Senate could be required.

After a judge serves a term, he or she stands for election, running against his or her record rather than a stated opponent. This allows voters to reject a judge failing to live up to expectations, without being forced to select someone else in his or her place. The bar association or civic groups might mount a campaign to remove a bad judge, but it is unlikely to generate the huge spending of the present system.

Once a judge is removed, a vacancy is created and the process begins anew.

Such a system would bring candidates to the table who might not be willing to engage in the money-grubbing and mudslinging of today's campaigns. It should produce more racial, geographic and ethnic diversity.

We would be spared the nastiness of the current campaigns, would feel better about the independence of judges, and still have a voice to protest incompetence.

Floyd J. McKay, a journalism professor emeritus at Western Washington University, is a regular contributor to Times editorial pages. E-mail him at floydmckay@yahoo.com