Time to change how Washington state selects its judges

OUR state's outmoded system of choosing judges by contested, politicized elections has been the subject of frequent calls for reform. Two weeks ago, it drew the ire of highly respected former U.S. Supreme Court Justice Sandra Day O'Connor.

Sept. 14, 500 judges, law-school professors, lawyers and concerned citizens attended a conference at Seattle University Law School to explore ways of curbing the corrosive influence of money in the way we elect our judges, and to consider alternatives to contested judicial elections. Justice O'Connor, our keynote speaker, urged the audience to reform our judicial elections, giving careful consideration to the alternative of a commission, or merit selection, system of selecting judges and requiring retention elections with an up-or-down vote based on judicial performance.

The first half of the conference considered the impact of the West Virginia case of Caperton v. Massey, in which a jury awarded Hugh Caperton $50 million against Massey Energy, a coal company that destroyed Caperton's company. Justice Brent Benjamin of the West Virginia Supreme Court cast the deciding vote throwing out Caperton's case and exonerating Massey. Benjamin sat on the case even though Massey's chief executive officer had just spent $3 million that helped Benjamin win election.

The U.S. Supreme Court reversed, holding that the due process clause of the Constitution prevented a judge from sitting on a case if a reasonable person would find it probable that the judge would be biased by contributions.

Although Washington state has not yet seen anything as extreme as the Caperton case, we should adopt reforms to prevent or at least discourage such substantial contributions in judicial elections. The Legislature took a helpful first step in 2006 when it imposed campaign contribution limits, but these limits can be easily evaded by spending money independently of the judge's campaign or through political-action committees (PACs).

Another important antidote to big-money contested elections is public education.

Yet, the heart of this problem is not voter ignorance or apathy — it's the unsuitability of requiring judges to engage in political campaigns in contested elections where they are prohibited by law from engaging on the issues. No wonder voters feel ill-prepared to decide among the many judicial candidates and positions, and desperately turn to lawyer friends, newspaper endorsements or simply decline to vote out of frustration.

The second half of the conference considered the possibility of moving Washington from election to a commission, or merit selection, system. Under a commission system, a commission of citizens and lawyers considers all applicants for a vacant court position and recommends three or more candidates to the governor. The governor must appoint one of the recommended candidates. Once appointed, the judge must periodically stand for a retention election without any opponent, in which the only question is whether to retain the judge for another term.

Some advantages of a commission system are: The focus is on the candidate's qualifications, not on politics; the power of appointment is divided between the commission of citizens and the governor; and every judge must periodically run for election; retention elections reduce or even eliminate the Caperton problem — the incentive for donors to make large money contributions to try to elect a favored candidate.

Most of our judges initially take office by appointment, with little or no public involvement in that process. When elections are contested, too often special-interest groups weigh in, trying to elect "their" judge.

The public deserves better than to have scores of judicial appointments initially made by the governor alone or in contested elections in which they are rarely provided with adequate information. Far better to take the counsel of the 1996 Walsh Commission and put a Washington state stamp on commission models already in place in many states such as Arizona (which was led by Justice O'Connor), Montana, Alaska and Oregon.

Our Legislature, governor, Supreme Court and civic leaders should take the lead to make our judiciary better and allow our citizens to have more confidence in the way judges are selected and retained based on ability — not on the attractiveness of their name or on the amount of dollars spent by special interests.