On Electing Judges, Or, The Comment That Got Away

by fake consultant

a progressives, south bend exclusive

I started to write this as a short comment to Don Wheeler’s story in this space from just a couple of days ago regarding the proposal to elect judges in Indiana…and all of a sudden, I had written an entire story.

Oops.

So for the delight of the assembled throng (hi, throng!), here’s a field report from Washington State, an “elect the judges” state. I’ll flesh out some of the details below to help add some answers to your questions:

--first, the grading of judges is accomplished more or less exactly as you predicted…the State’s various Bar Associations and the League Of Women Voters collaborate to produce the pre-election ratings (the League prepares surprisingly neutral ratings for all candidates for every elected office in the state every election cycle. Ratings include “highly qualified”, “qualified”, and “unqualified”).

Judicial candidates can also make statements in the State’s official voter information pamphlet.

--judges may not be associated with political parties…and the media will report if the candidate in question is running for the Supreme Court and has “notable” views (pro-life/pro-religion is the big one that gets attention)…but it is a different story for lower court judges. They often run unopposed, and even if they don’t there’s a real “who in the world are these people?” problem—unless one of the candidates was involved in a notable trial or scandal.

This tends to benefit the incumbent not facing a “name recognition” opponent.

I’m pretty sure badly timed drunk driving charges kill off as many lower-level judges at election time as legal errors, bad behavior from the bench, and ideological issues combined. Supreme Court Justices can and have survived them, however.

There are concerns about the “Liberals/Conservatives taking over the judiciary” problem; and the lower court judges’ 4-year terms tend to keep this in check. (The Supreme Court has 9 Justices, 3 are elected every 2 years.)

Washington State’s voters adopted “determinant sentencing” by initiative a number of years ago…which means judges use a point system to determine a sentencing range, and cannot sentence outside of the range without providing an appealable justification. “Enhancements”, such as exceptional violence in the commission of a crime, justify exceptional sentencing.

This form of judicial control seems to be very important in protecting the public from bad electoral choices…and makes the “I’ll be tough on crime” argument somewhat useless in elections.

--all oral arguments before the Washington State Supreme Court can be viewed on the TVW channel or website ( www.tvw.org ), which has been true for more than 15 years. (TVW is also the official record of state government—virtually all activities of the Legislature-executive session excluded-and the Supreme Court, along with much of the work of the executive branch can be seen from this site.)

As a result we have a way to personalize the Justices, and see them in at least a part of their job routines.

This was important for me in the case of Richard Sanders, a candidate for the Supreme Court who staked out an unabashed pro-life position and claimed he would be unaffected by his politics, after which he won election to the Court.

In the several years since he came to the Court I have had numerous occasions to observe his courtroom demeanor and as a result I have voted for his re-election—and I’ll happily do it again. Being able to watch him made me agree he is fair and unbiased…and he does not suffer fools well…and that makes me feel pretty good about the electoral process, as opposed to the earlier comment about the “who are they…?” issue.

I can say from having watched that 7 or 8 of the 9 justices are first-class; and with the exception of Sanders and the recently elected hard-right guy I don’t like at all it’s impossible to determine exactly what their politics are.

(I say 7 or 8 because there is another Justice-Mary Fairhurst-who is also relatively new to the bench, having previously served as the State Attorney General’s rep for an executive branch agency; and as a result of her being so new I’m not yet ready to offer her an enthusiastic endorsement. The others? Darn good at what they do.)

--there should be no need for requests for campaign finance reports. Around here that stuff is put online by the State’s Public Disclosure Commission and you should demand the same.

(More disclosure is always a great “purple” issue, by the way, and “we have the right to know who owns our politicians” is a perfect way to frame that discussion.)

--the issue of “creeping campaignism” has just begun to affect the low-key tradition of judicial campaigning here; and we may find that we wish to limit campaign activity in judicial races while still respecting the freedom of political speech…which will be an especially tough balancing act.

That is a potential major problem down the road for which no easy answer is yet evident. It is possible that voter backlash will provide the moderating tool we seek, however, that cannot be known at this time.

--the opportunities for manipulation with appointed judges are vast indeed, and without a full knowledge of Indiana’s system it’s tough to identify the exact “pinch points”—but it’s easy to imagine where they could be found.

So where is all of this going?

I guess what I would tell you is that from here, despite the inherent risks, the election of judges has been a mostly positive experience—but the fact that we have given judges a limited degree of discretion in criminal sentencing is probably as important in making that true as any good luck we might have had in our electoral choices.

And any time you can get the public making decisions you create more democracy, which is a good thing, most of the time.

I would suggest this remains true unless the judicial elections devolve into full-blown combat campaigning; this has not been the case in Washington State so far.

The future?
We shall see.

In the meantime, my bias toward democracy tells me to recommend you consider how you might move forward on the idea of electing judges…and if you don’t have them already, get the limits on judicial discretion in place at the same time, so as to avoid “Judge Roy Bean” syndrome…and its impact on campaigning.

I wasn’t kidding, was I?
This really was the comment that got away…but I hope you find the information of value.