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April 2007In June 2006, the Washington State Bar Association Board of Governors established the Judicial Selection Task Force. The purpose of the Task Force was to consider the following questions: 1. Are judicial elections presently serving their intended purpose? 2. Would it be appropriate to implement a commission selection process for some or all judicial positions? 3. If it would be appropriate to move to a commission selection process, what might that process look like? The Task Force was composed of members of the WSBA Board of Governors, the judiciary, the legislature, the practicing bar, and members of the public. Over the course of six months, the Task Force invited individuals and organizations to meet to discuss the benefits and problems associated with both the elective and commission systems. In addition, the Task Force reviewed many articles dealing with the subject, including materials from the Walsh Commission. After deliberation, the Task Force issued two reports on their findings. The majority report recommends that the manner in which we select judges be changed from an elective process to a commission selection system. The minority report favors retention of the election system.
Judging Judicial Selection: A Framework for Analysis by Charlie Wiggins This issue of Bar News challenges readers to wrestle with and form their own opinions about the best method of judicial selection for Washington. This article proposes that a good judicial selection system should embody the following qualities: an appropriate balance between independence and accountability; attraction and selection of the best judicial candidates; consistency with democratic principles; and public acceptance and respect.1 This article simply poses the questions and begins to identify how those questions relate to the current system and a commission system. And you, the reader, will have to draw your own conclusions. Independence versus accountability Most observers and critics of judicial selection would agree that independence is a core value of any judicial system, if not the most important quality we look for in judges. By independence we mean the ability of a judge to make decisions without regard to outside pressure or influence. Ultimately, the greatest threat to judicial independence is probably the judge’s fear of losing the next election if interests unhappy with the judge’s decisions stir up opposition and defeat the judge. But isn’t that what democracy is all about — the right of the electorate to replace unsatisfactory officials, to throw the rascals out? This fundamental democratic principle of accountability is the counterweight to judicial independence. We wouldn’t want judges who are so independent that they ignore the law or the Constitution. We want to be able to replace unsatisfactory judges with better ones. Any judicial selection system can be placed somewhere along a continuum between total judicial independence and total accountability. The federal system falls squarely on the independence end of the spectrum. Where do our current electoral system and a commission system fall on the independence/accountability continuum? Under our current elections, accountability is not a major focus of campaigns for open seats, because the candidates have not previously held the office and cannot be held accountable for the court’s prior decisions. A judge running for a higher court can theoretically be held accountable for decisions in a current position, but this seldom seems to occur. But accountability can be a major issue for a challenger running against an incumbent seeking re-election, as occurred in Washington’s 2006 Supreme Court elections. Unfortunately, the pressures of a statewide election tend to oversimplify the issues and to ignore the bigger picture of the incumbent’s other decisions. It is also difficult in the election to convey any sense of other aspects of the incumbent’s performance, such as the quality of legal reasoning, the clarity of guidance for the future, the incumbent’s diligence, and the incumbent’s administrative ability. A commission system elevates judicial independence and changes the nature of accountability. For the initial appointment, a commission narrows the field of candidates to a small number, and the governor then appoints from the approved list. The appointee then serves for a stated period of time before standing for a retention election. In the retention election, the only issue is accountability, but there is less incentive for anyone to campaign against the incumbent on the issue. Both our current election system and a commission system can be focused more precisely on accountability through a comprehensive program of judicial evaluation. Such programs collect evaluations of all judges from a variety of participants in the judge’s court — lawyers, parties, witnesses, and jurors. To make accountability more meaningful, judicial evaluation programs should be extended to evaluate the challengers as well as the incumbents. Attraction and selection of the best judicial candidates Most people would probably agree with the American Bar Association’s “enduring principles” that judges should: uphold the rule of law (in other words, decide cases based on the law, not on personal opinion), be independent, be impartial, possess the appropriate temperament and character, possess the appropriate capabilities and credentials, enjoy public confidence, and reflect the society they represent.2 Does our current electoral system attract and select the candidates who best personify these qualifications? Would a commission system perform better? It seems almost indisputable that many fine judicial candidates are deterred from running for election by the daunting prospect of organizing and mounting an election campaign, as revealed by a survey conducted by Washington State University Associate Professor David Brody and discussed in the majority report of the WSBA Judicial Selection Committee Task Force. Would more good candidates apply for appointment under a commission system? In light of the Brody survey, more candidates would surely apply for appointment, especially if they did not have to face an election campaign after appointment. Which system would select the best judges from among the field of candidates? Proponents of the current election system inevitably argue that we have fine judges now and don’t need any other system. Proponents of the commission system argue that the voters are simply insufficiently informed to vote intelligently in judicial elections. They also point to the pervasive and corrosive influence of money and the random effects of irrelevant factors like the candidates’ names and the general serendipity of elections. Consistency with democratic principles Proponents of our current system can argue that popular election of judges is more consistent with our democratic system than delegating the task of selection to a selected panel. The arguable consistency between the election of judges and democratic principles may be more theoretical than real. For democracy to function, the electorate must be informed about the candidates and issues in order to exercise the franchise intelligently. Unfortunately, the voters consistently complain that they lack sufficient information about judicial elections. Commission systems will be more consistent with democratic principles if they are designed to give a prominent role to ordinary voters, instead of to lawyers or political office holders. If ordinary citizens dominate the commission, the commission becomes much more like the jury — a group of citizens to whom society has delegated the important role of judging disputes between litigants. A commission would similarly be a group of citizens to whom has been delegated the important role of selecting the best judicial candidates. Public acceptance and respect Our courts depend entirely on public acceptance and respect to give their decisions the dignity and gravity to merit enforcement. Which system of judicial selection best promotes public acceptance and respect? One would think that public election would lead to public acceptance and respect. But the general lack of information about judicial candidates and the courts tends to undermine public confidence. Voters frequently voice their discomfort with judicial elections. This discomfort is evident when people vote in the better-known races, such as presidential, senatorial, or gubernatorial, but “roll off” or fail to vote in the judicial elections. In 2006, for example, only 67 percent of the voters cast a vote in the one Supreme Court election on the general election ballot.3 Another factor undermining confidence in the courts is the public perception that campaign contributions influence a judge’s decisions, as disclosed by surveys conducted in 20044 and 2007.5 Public acceptance and respect probably depends largely on the design of the commission system. Acceptance and respect are probably enhanced if political factors are reduced and the role of nonlawyer, non-public official citizens is increased. Respect for the electoral system is probably increased if the influence of special interest money can be minimized and public awareness of judicial candidates can be broadened and deepened. Conclusion The rule of law depends entirely on the independence and integrity of our judges. As you read the articles in this issue, ponder which selection system best advances and balances the qualities you find most important in judicial selection.
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