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April 2008WSBA Judicial Selection Task Force Minority Report Supports Improved General Electionsby Marcine Anderson and Nicholas F. Corning Limiting the right to vote has frequently been used to disenfranchise certain groups of people in the United States from the fundamental process that is key to our democracy. There may be flaws and problems with the election of judges, but eliminating the election of judges does not cure any of the perceived problems. Instead, the election process should be improved by providing more information to voters and education to students before they reach voting age. The WSBA Judicial Selection Task Force was asked to address three questions related to the selection of judges: 1. Are judicial elections presently serving their intended purpose? 2. Would it be appropriate to implement a merit selection process for some or all judicial positions? 3. If it would be appropriate to move to a merit selection process, what might that process look like? The Task Force submitted two reports to the WSBA Board of Governors, answering these questions differently. The divergence in opinion came with the answer to Question No. 1, above. Nine members of the Task Force1 answered “No” to Question No. 1 and filed the majority report, recommending replacement of Washington’s current judicial election process with a commission system of judicial selection. Six members of the Task Force2 filed a minority report which answered Question No. 1, “Yes, judicial elections are presently serving their intended purpose.” Although the current system is imperfect, a constitutional amendment replacing the election of judges with a commission selection process and retention elections would not solve the perceived problems with judicial elections. Those of us subscribing to the minority report believe the purposes of judicial elections are to recruit, select, and retain qualified, honest, hardworking, and impartial judges and, at the same time, hold the elected judges accountable for their acts and omissions. Washington began electing judges at statehood in 1889 and is one of 12 states that currently elect judges on a nonpartisan basis.3 The intent of Washington’s founders was to keep as much power as possible in the hands of the people. There is no hard evidence that the election process is not meeting the purposes of elections, as stated above. To the contrary, overwhelming evidence is that Washington state courts at every level have excellent judges who appear to make fair and equitable decisions. Article IV of the Washington State Constitution requires that judges be elected. Changing to a commission selection system will require the adoption of a constitutional amendment. This may be difficult, since there is no groundswell of dissatisfaction with the current judges around the state, nor is there a public outcry to replace our current judicial election system. Finally, there is no evidence that implementing a commission selection system will produce “better” judges. It is hard to imagine that Washington voters would willingly give up their right to vote for judges. Will voter participation be increased by a commission selection process? Proponents of a commission selection process argue that the electorate would be better served by that model. It is true that judicial elections are a mystery to many voters. In fact, attorneys frequently become their own “mini-commission” by answering questions from their friends about judicial candidates. It is quite possible that the lack of information about judicial candidates causes the 25 percent to 33 percent voter fall-off, where those who vote in other races on the ballot do not cast votes in the judicial contests. To us, it does not appear that the solution to 25 percent or 33 percent voter fall-off would be the 100 percent elimination of all voting for judges. This was a concern addressed by the Walsh Commission4 in 1996, when it recommended three types of voter information to better inform the electorate about judicial candidates: (1) a process for collecting and publishing information about judicial performance; (2) a process for collecting and publishing information about candidates for judicial office; and (3) the publication of a judicial voter pamphlet. Not all of these recommendations were adopted. The website www.votingforjudges.org is an innovation that has provided a great deal of information on judicial candidates as well as the process for elections. Technology today can provide voters with candidate information that was not easily available even 10 years ago. Increasing voter education will increase voter participation. Elimination of voting for judges will certainly not increase voter participation. Will the commission selection process be independent? Much has been written about the independence of the commission selection process. In theory, the commission selection process would be the epitome of objectivity and impartiality. This theory fails to recognize that the commission selection process could be more politicized than the election of judges, as asked in the Task Force minority report, “Who is to select the selectors?”5 Many commission selection processes rely on commissions composed of members appointed by the governor, legislature, or professional groups. Attorneys who serve are likely to be surrogates for their client-base constituency, or professional and political allies. Lay citizen members are typically prominent individuals who have been political supporters of the governor or agency appointing them and are likely to support the selection of judges favored by their patron. Thus, the judges named by commissions are more likely to be perceived as “elitist” appointees than if they were elected by voters. Removing the selection of judges from the public electorate could establish a process controlled by subterranean politics made up of special-interest groups who are likely to master the system to gain membership on the proposed commissions. Even when commission members are elected by a vote of the people, there is no assurance that the election of commissioners will produce better results than the election of judges. What purpose would be served by substituting one type of election for another? Which process creates a more diverse bench? Studies rely on anecdotal information about how women and people of color fare in the election and commission selection processes. A 2005 report prepared by the Lawyers’ Committee for Civil Rights under the Law6 stated: Despite a lack of data on the effectiveness of elections in creating diversity, minority communities traditionally prefer the election model over an appointment system. . . . There has been an historic pro-election view among many in communities of color, because of a suspicion of the appointment and merit selection process. The concern is that insiders will be less likely to select diverse candidates. (Lawyers’ Committee for Civil Rights Under the Law, Answering the Call for a More Diverse Judiciary at 14 (June 2005)). Commenting on the effectiveness of the judicial appointment process, Marisa Demeo, regional counsel of the Mexican American Legal Defense and Educational Fund, describes her perception that under the appointment process there is a cap on the number of minorities that can be appointed: “There is generally perceived to be caps on how many minorities you can actually appoint, while there doesn’t necessarily have to be a cap on how many white males that you’re going to appoint. (Lawyers’ Committee for Civil Rights Under the Law, Answering the Call for a More Diverse Judiciary at 11 (June 2005)). She further commented on the composition of the Texas 13th Circuit Court of Appeals where all six elected justices in 2005, including the chief, were Latinos: “I can tell you that if there was an appointed system there would have been a cap put on the appointment of Latinos way before you got to be able to fill all seats with Latinos.” (Lawyers’ Committee for Civil Rights Under the Law, Answering the Call for a More Diverse Judiciary at 11 (June 2005)). Other factors that limit judicial diversity such as “racially polarized voting and the inability to raise sufficient campaign funds” were also cited in the Lawyers’ Committee report, at 5. One conclusion reached in the Lawyers’ Committee report, at 21, was that “a community’s political clout and influence were essential to creating a more representative judicial system.” There is certainly no overwhelming evidence that an appointive process will result in a more diverse bench than an elected judiciary. Can the commission selection process be used statewide? It is also extremely important to note that the commission selection system has been implemented only in urban parts of states that have a significant rural population. Arizona uses its merit selection process only for the appellate court and superior court judges in Maricopa and Pima counties. Rural counties continue with the system of judicial elections. Similarly, rural Washington counties, such as Walla Walla County with approximately 100 WSBA members, would not seem to be particularly amenable to the commission selection system. Conclusion The judiciary and the people of the state of Washington will best be served by improving the election process for the selection of judges. This should include improvements in the curricula of all elementary, middle schools, high schools, colleges, and universities in the state to better educate the public about the role of the law, the legal system, and the judiciary as an impartial, equal, and independent branch of government. More and better information about judges running for election should be placed in the hands of voters to increase voters’ participation in the election of judges, not only for the general election but also the primary. A system perceived to be run by politicians and people in the know should not replace the wisdom of Washington voters.
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