Washington state should change the way it selects judges

Former U.S. Supreme Court Justice Sandra Day O'Connor knows about the challenges facing state courts. During her 25 years on the high court, she had a national perspective on the strengths and weaknesses of court systems.

Monday, she was in Seattle to charm, chide and cajole Washington state to abandon its practice of electing judges — something she has made her mission since she retired in 2006. I'm with her.

O'Connor is worried about the trend of special interests — "from plaintiffs' attorneys to corporations to cultural warriors" — pouring big money into state supreme court races — $5 million into an Alabama race last year, $9 million in an Illinois race five years ago.

As if to put an exclamation point on O'Connor's mission, the U.S. Supreme Court in June said in a 5-4 ruling in Caperton v. Massey that a West Virginia state supreme court justice should have recused himself from a case involving one of his major campaign benefactors. The CEO of Massey Energy spent $3 million in 2004 to elect Brent Benjamin to the state supreme court, ousting an incumbent. A few years later, Benjamin voted to overturn a $50 million claim against Massey.

Now, was that a good return on investment for Massey? Or as Benjamin insisted, the contribution did not affect his judgment and he should not have had to recuse?

Hard to say, but the case certainly spurs public cynicism as well as the imagination. A similar unsettling scenario is at the heart of John Grisham's 2008 novel, "The Appeal," set in Mississippi.

The Caperton decision has spurred a few states to revisit ethical rules regarding when it is appropriate for judges to recuse themselves. On Sept. 28, Washington's Supreme Court rules committee will consider a task force recommendation updating the Code of Judicial Conduct, including new recusal rules.

In her speech to a Seattle University School of Law-sponsored conference on state judicial independence, O'Connor acknowledged there is no evidence to suggest the justice was swayed by the contribution. But the doubt and public trust in the courts is what concerns her.

Washington voters will remember the bruising supreme court justice races in 2006, when the Building Industry Association of Washington targeted the well-respected Chief Justice Gerry Alexander with unseemly and misleading ads. Alexander prevailed but the experience left many observers of Washington's judicial elections uneasy at the close call — except, interestingly enough, the chief justice himself, who remains strongly in favor of judicial elections.

Advocates argue the system worked, that the nasty campaign spawned a voter backlash that saved Alexander. But I agree with those who argue the conversation would be much different if Alexander had been ousted.

There has been much debate about whether Washington should change its ways. The Washington State Bar Association Board of Governors, after weighing a task force's majority recommendation to support change, came out in favor of the current election system.

However, the surprising truth about Washington's judicial election system is that most judges aren't elected. They arrive on the bench through a gubernatorial appointment. Of the state's 218 elected judges on the supreme, appeals and superior courts, 60 percent of them were appointed by the governor, according to a 2009 study by Washington State University professors. And when they come up for re-election, 84 percent of incumbent judges are unchallenged.

Count me with those who think a citizen-based nominating commission, similar to that recommended by the 1996 Walsh Commission, would be a better way. The nominating commission would vet candidates and recommend the best to the governor for appointment. The judges would stand for retention elections.

At the conference Monday, there was some hint the Legislature might consider alternatives. However, I'm skeptical serious change will happen without another brazen, offensive invasion of special-interest money — this time successful.

It is just a matter of time.

Kate Riley's column appears regularly on editorial pages of The Times. Her e-mail address is kriley@seattletimes.com