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April 2008How We Choose Judges: It’s Time for a Changeby the Honorable John E. Bridges, the Honorable Steven R. Buzzard, Douglas C. Lawrence, John R. Ruhl, Kenneth L. Schubert Jr., George F. Velikanje, and the Honorable Mary I. Yu The question of whether judges are better elected or appointed using a commission process is a long-standing one. Although many judges are still elected officials, 32 states and the District of Columbia today use commissions for the selection of some or all of their judges.1 In our state, the debate between election and a commission process began at the Constitutional Convention in 1889 and continues to this day. During the Convention, the issue of how to select judges was a subject of substantial discussion. The Constitution approved by the delegates provides for election of judges, but a vocal minority of delegates recognized the inherent tension created by judicial elections. History In 1934, the newly formed Washington State Bar Association appointed a “Committee for the Selection of Judges and Bar Activities Related Thereto.” The committee surveyed WSBA members and reported that 67 percent of the respondents wanted to change the way judges are selected, and 56 percent favored a constitutional amendment providing for the appointment of judges of the Superior and Supreme Court. In 1969, Governor Daniel Evans appointed a 20-person Constitutional Revision Commission consisting of lawyers and nonlawyers. The Commission determined that “the traditional election method… is not suitable for selecting judicial officers,” and recommended a constitutional amendment establishing a statewide “judicial nominating commission,” which would make non-binding recommendations to the governor; each appointment would be followed by a retention election after a two-year probation period, and retention elections every four years thereafter.2 In 1995, Chief Justice Barbara Durham convened the Walsh Commission, and directed its 24 members to review all aspects of judicial selection. A year later, the Walsh Commission issued its report recommending that judges be selected using citizen-based nominating commissions, with each appointee standing for re-election in a single contested nonpartisan election after a probation period, and unopposed retention elections thereafter.3 In June of 2006, the WSBA Board of Governors established a Judicial Selection Task Force for the purpose of evaluating whether or not a commission system of selecting judges should be adopted in the state of Washington. A majority of that task force, which includes the authors of this article as well as the Honorable John A. Schultheis and David Endicott, concluded that it would be appropriate to explore changes and to consider adopting some form of a commission selection system. Are judicial elections presently serving their intended purpose? The reasons commonly given for wanting to have judges elected are: While these are notable goals, the evidence shows that these objectives are not being met and that confidence in the judiciary is slipping: 1. Most judges are not elected.4 Since statehood: 2. Once attaining the bench, most sitting judges do not face subsequent contested elections.6 In larger counties (having populations in excess of 100,000), if a superior court judge is unopposed, his or her name won’t even appear on the ballot.7 3. If a vacancy occurs in the office of a judge of the Superior Court, Court of Appeals, or Supreme Court, the governor fills the position by appointment.8 There are no limitations on the governor’s power to appoint. 4. People just don’t vote for judges. Nationally, statistics indicate that 80 percent of the people don’t vote in judicial elections. For those who do participate in elections, it is common for 25 to 33 percent of Washington’s voters to stop at mid-ballot and to not vote for the judicial candidates.9 5. Most voters are uninformed about judicial candidates. It has been reported that 80 percent of the people are unable to identify judicial candidates.10 There is little information available to the public about judicial candidates, their credentials, and, for incumbents, their performance while serving on the bench. There is also a general lack of knowledge about civics and the different roles the three branches of government have in our tripartite system. 11 6. The role of money has, at a minimum, created a perception that judges can be influenced by campaign contributions. Studies indicate that 90 percent of the public believe that elected judges are influenced by campaign contributions; 46 percent of judges believe campaign contributions have some influence on their decisions; and four percent believe that it has a great deal of influence on decisions.12 (See John Ruhl’s article “Flood of Money Endangers Perception of Judges’ Impartiality” on page 27.) 7. Many qualified candidates will not run. A recent survey was conducted to determine why attorneys may or may not want to run for judicial office. The survey, conducted by Associate Professor David Brody of Washington State University (the 2007 Brody Survey), was sent to 4,000 attorneys in all 39 counties. Responses were received from 1,109 attorneys from 37 counties. The survey results are informative: Why a commission selection system? Most voters don’t know who the candidates are, what their qualifications are, or even what it takes to be a good judge. This is distorted further by the influence of significant dollars now pouring into judicial campaigns. Although candidates in high-profile positions such as the Supreme Court and Court of Appeals often gain greater exposure to the community through the press, they are also the positions that are most likely to be targeted by special interests. It will be very difficult to preserve the confidence of the public in the impartiality of the judiciary if those positions continue to be filled using an election process. Campaign-reform legislation may provide some degree of relief, but it will be difficult, if not impossible, to contain or control independent expenditures. The judiciary needs to be impartial, independent, and have the appearance of fairness. This objective is at risk if judges continue to be elected. A commission selection process will provide a process where our judges are selected by members of the public who have the opportunity to understand who the candidates are and what their qualifications are through careful and deliberate study of the candidates. A commission system is also more likely to enhance the diversity of the judiciary. Of the 20 minority judges sitting in the appellate and superior courts as of February 4, 2005, only three were elected. The other 17 (85 percent) were first appointed to the bench. This is consistent with the experience in New Mexico and Arizona. With the implementation of the commission system, more minorities and women are now being appointed than were previously being elected.13 What should the commission selection system look like? The commission system should have the following qualities: Retention elections are also a necessary part of the process to provide accountability. However, to make the retention elections effective, there should also be a system that provides the public with comprehensive evaluations of our judicial officers. Washington should model its commission selection system on Arizona’s. Arizona changed from an election system to a commission selection system in 1974 by constitutional amendment. In 1992, the Arizona Constitution was amended again, establishing a formal judicial performance-evaluation process. Under Arizona’s system, two-thirds of the commission members must be nonlawyers. There are requirements that membership be balanced among political parties. At least three nominees must be submitted to the governor, and no more than 60 percent of the nominees may be members of the same political party. There is significant openness and public participation throughout the process. The public can review résumés, and can attend the candidate interviews. Performance evaluations are prepared for all judges. The results of the evaluations are made public and are mailed to voters.14 Arizona is widely recognized as being a national leader in this arena, and the public support for the Arizona system is very high. Conclusion The question is often asked: “Won’t a commission system take away the people’s right to participate in the process?” In fact, a commission system will enhance the public’s ability to control the quality of the state’s judiciary. Instead of having most judges appointed by the governor, they will instead be selected by members of the public serving on the commissions. The public will also have a more meaningful say through the implementation of a retention-election system that incorporates objective and publicly available performance evaluations for the judges. A majority of the lawyers responding to the 2007 Brody Survey indicated that they are dissatisfied with the current election process. Only 36.4 percent of those responding wanted some form of election of trial court judges, and only 30.3 percent of the respondents wanted some form of election of appellate court judges. The statistics show that most judges are not elected, and that when they are elected, they are chosen by a small percentage of the population that is often ill-informed about the candidates and their qualifications. With the increasing role of money, the public’s trust in our judicial system is eroding. The judiciary and the people of the state of Washington will be best served by implementing a commission system for the selection of judges that involves the public and that provides transparency to the process. Judges who are appointed to the bench should stand for re-election on a periodic basis. A comprehensive system of judicial evaluations similar to that used in Arizona should be considered, and the information that is compiled through that process should be made available to the public. We should join the 32 jurisdictions nationwide that use judicial-selection commissions. Moving to a commission system will help to assure that our state will continue to be served by an excellent judiciary. The Honorable John E. Bridges has served as a Chelan County Superior Court judge since 1989. The Honorable Steven R. Buzzard has been in private practice with Buzzard & Associates in Lewis County for 33 years, and a part-time municipal court judge since 1979 currently for Centralia, Chehalis Winlock, Napavine, and Vader municipal courts. Douglas C. Lawrence is a member of the WSBA Board of Governors representing the 8th congressional district and is the chair of the WSBA Judicial Selection Task Force. He is a shareholder in the Seattle firm of Stokes Lawrence, P.S. John R. Ruhl is a member of the Seattle office of Eisenhower & Carlson, PLLC, and is the immediate past president of the King County Bar Association. Kenneth L. Schubert Jr. is a founding owner of Garvey Schubert Barer and a fellow in the American Council of Trust and Estate Counsel. George F. Velikanje received his L.L.B. from the University of Washington School of Law. He practices in Yakima as a principal in the firm of Stokes Lawrence Velikanje Moore & Shore. The Honorable Mary I. Yu is a King County Superior Court judge. NOTES |
