Washington Courts: Judicial News Report Detail
The Judicial Selection Debate
October 07, 1996
Senate hearing:
- The judicial selection debate
Did voter participation increase in states with judicial retention elections?
Will performance evaluations be more objective than the evaluations of local bar associations?
Why not have partisan elections?
These were a few of the many questions asked when members of the Walsh Commission presented findings from their report “The People Shall Judge,” to the state Senate Law and Justice Committee, September 20.
The event marked the first legislative airing of the Commission’s recommendations to revamp the state’s judicial elections system, since publication of the report. Those testifying included commission vice chair and Division I, Court of Appeals Chief Judge William Baker, Seattle; Pam Praeger, Spokane; Safeco VP Dan Wolfe; lawyers Lem Howell and Mary Wechsler of Seattle and Dave Savage of Pullman.
Outlining the problem
Committee chair Sen. Adam Smith (D), Kent, opened the hearing, saying the upcoming legislative session would most likely produce legislation revolving around the commission’s recommendations.
In opening remarks of his own, Baker gave the Commission’s view of problems that affect the current judicial selection system.
“In looking at the present system in this state, the Commission discovered that there is a wide gap between perception and reality,” said Baker. “The perception--and on paper--is that the system is an open, non-partisan election process. But the fact is that about two-thirds of our judges reach the bench via appointment. The process is perceived by the public--and I believe correctly so--as a political one...influenced by insiders.”
Partisan elections?
Midway through Baker’s presentation, a mini-debate developed over the merits of partisan judicial elections vs. non-partisan ones.
“I just wonder if you touched upon the fact that we might consider partisan judges like other states do,” said Sen. Bob McCaslin (R), Spokane.
Jumping in, Sen. Pam Roach (R), Auburn, said, “Representing my district, I think that they are very much concerned about the philosophy of the person that is running,” she said. “Why not just let the political parties do this? Why not as Sen. McCaslin brought up--have these be partisan elections?”
“I’m flashing some very bad images here, personally,” commented Smith.
“There is not a soul, Sen. Smith,” Roach rejoined, “that is going to like this idea--I know that, but it should be floated out there. What you have now is [Seattle talk-show host] John Carlson blasting out to all conservatives who he thinks ought to be judges...And you’ve got liberals on the bar association--downtown Seattle liberals--who say this is who we think [should be judge].”
In his response, Baker outlined the state’s history of selecting judges by both partisan and non-partisan means, and described problems that arise in partisan frays.
“I would tell you that based upon the information we received from the National Center for State Courts and from other states...where partisan election is the mode of operation...the expense in judicial elections has been greatly exacerbated,” said Baker. “In Texas, there are millions of dollars being spent by trial lawyers and oil money to get ‘their’ Supreme Court Justices on the bench. Texans--at least the ones I have talked to--don’t like that system. They feel very uncomfortable with it because it is not the objective judiciary that they envision.”
Pam Praeger, a lay member of the Walsh Commission and the Commission on Judicial Conduct, weighed in with her feelings on the subject.
“I do not want to be a victim or a defendant going before a judge where I would have to feel like it is already decided for me...the sense I got from all of the focus groups [performed as part of the study]...is that they want [judges] to adhere to the law.”
Nominating the nominators
A basic element of the Walsh Commission’s approach is its proposal to use recommendations of nominating commissions to fill vacancies. How, the senators asked, would nominators be selected? “If you are going to tell me that you expect a non-partisan appointment [to the nominating commission] coming out of the governor’s office or the Legislature...that is unreal!” Roach exclaimed. But Smith disagreed. “The Legislature and the governor will make their best selection. This is not a perfect process, but I would remind everyone that the Legislature is elected by those same people that have those same concerns. At some point, as you sift all of this through, you come fairly close to reflecting the public’s opinion--that’s the beauty of democracy.”
Other concerns
Several other questions, from logistical to philosophical, were raised concerning the Walsh Commission’s proposals.
Sen. Jeanine Long (R), Mill Creek, asked, “In the states that have retention elections, did voter participation increase? Every election, I get calls, ‘Who should I vote for? I don’t know these judges.’”
Baker said the commission had no figures to prove voter participation increased in retention election states, noting that voter drop-off was still a problem in those jurisdictions. But he pointed to a major difference between what the Walsh Commission proposes and systems used in most of the three dozen states where retention systems are now in place: the addition of a performance evaluation component.
“Very few states have it...it is a recent phenomenon in Arizona, Colorado, Alaska and Utah,” said Baker. More information could push more voters towards the polls, he said, though statistics are lacking that could be used to compare voter drop-off rates under this system.
“In the states that do this,” asked Sen. Ray Schow (R), Federal Way, “do you then have third party special interest groups getting involved? Let’s say the performance evaluation said this judge has done a good job, but a particular third party or special interests don’t like what he or she has ruled. Do these special interest groups move in and further confuse this?”
Baker said judges in retention systems are generally prohibited from campaigning, unless there is organized opposition to their retention. In a few retention states--usually those without performance evaluation components--single-issue campaigns have been waged against incumbents, he said.
Sen. Stephen Johnson (R), Kent, wondered how credible the judicial performance evaluations would be. “What assurance is there that the evaluations will be more objective than the evaluations of the King County Bar Association, which has serious credibility problems?”
Commission members said the key would be to include a majority of lay people in the mix of those selected for performance evaluation committee membership.
“I think fairness, decisiveness, promptness in decision making are things that most people can evaluate,” added Howell. “If you say ‘What about technical knowledge of the law?’ then a lawyer may be able to throw something in.”
“The best we can do”
As the hearing ended, it was clear the Commission’s findings could become a topic of debate in the coming legislative session. Smith later told a reporter, “It’s not an easy sell. It’s going to take a lot of work.” (See News Tribune article, page 13.)
Smith, also a member of the Commission, compared concerns of his committee to those of individual Walsh Commission members.
“I went to the first meeting and the last meeting, and the difference between the two was totally beyond comprehension,” he explained. “There was 15 different opinions, and just about everything that has been expressed up here was expressed at that meeting by some of the [same] people sitting in front of us.”
“You’ve got to look at the whole picture. You’ve got to look at the system as we have it, and [say] ‘What is the best that we can do?’ I think that is what the commission did for a full and very difficult year...”
“I think this is an excellent first step. I can assure you that everything in here word for word will not be adopted by the Legislature this session...there will be changes, and I personally look forward to working with you on that process, as I’m sure all of the members of the Committee do.”
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