September 2005

Letters to the Editor

Bar News welcomes letters from readers. We do not run letters that have been printed in, or are pending before, other legal publications whose readership overlaps ours. We ask that, if possible, letters be no more than 500 words in length, and that they be e-mailed to letterstotheeditor@wsba.org or mailed to WSBA, Attn: Letters to the Editor, 2101 Fourth Ave., Ste. 400, Seattle, WA 98121-2330. We reserve the right to edit letters. Bar News does not print anonymous letters, or more than one submission per month from the same contributor.

Bizarro world is worrisome

President Ron Ward’s article, “Attacks on the Judiciary — Living in a Bizarro World” (July 2005 Bar News) is very thought provoking and issues a challenge to all practitioners. It was the best article I remember reading from a WSBA president since my license was issued in 1974.

The issues raised by Ron Ward are real and accurate. He raises issues that all of us, as licensed practitioners, should take extremely seriously.

Thank you, Mr. Ward.

G. Saxon Rodgers, Olympia

Courts shouldn’t act as legislatures

I think most members of the WSBA will agree with most of the points made by President Ron Ward in his call for protection of judicial independence against some of the “bizarro” proposals to pressure judges that are reported to be coming from Congress. It is unlikely that even the attackers would admit to being against the courts making “decisions based on the facts and the law” (page 9), and producing “cases . . . decided on their merits . . . according to the law and the facts, not the vagaries of shifting political currents or the clamor of partisan politicians.”

We want our courts to be “no respecter of persons,” to dispense the same result on similar facts no matter what the relative wealth or political prominence of any litigant. We want the courts to give us predictable results and rules we can follow, so that the risk of litigation will be reduced, and so that the known risks can be dealt with through insurance and other contractual agreements. Greater predictability makes us freer to control our personal lives and join with others to embark on new enterprises. Another value of predictability is that, if we don’t like the rule, we can seek through the political process to change the rule, through legislation at the appropriate level, through referenda, through election of new legislators and governors and presidents, and through amendment of State and Federal constitutions.

As President Ward cautioned, “Judicial independence does not mean that judges are free to decide cases according to their own whims and prejudices.” When a court decides to change the rules based on the personal preferences of its judges, it invites the public to be cynical about the courts, and the rule of law loses its power to unify our society. The attempt to comprehend the law as an objective, transparent and robust structure with integrity is then seen as a sucker bet, and we are invited instead to psychoanalyze the judges and find ways to influence their behavior outside of pointing to the law. The resulting emphasis on personal preference over loyalty to the law drives the entire bizarro circus that is the current Senate judicial confirmation process.

. . .

Sadly, we are treated more and more to the hypocritical pronouncement that the authority for decisions altering the established meaning of the Constitution comes from the judges’ sense of the trend of public opinion. Thus, the laws in the majority of states with the death penalty, that allowed juvenile murderers to be eligible for capital punishment upon the decision of a jury weighing all the facts and the law, were cut down by Justice Kennedy and four of his cohorts, on the grounds that he perceived that public opinion was growing more opposed to the execution of juvenile killers, not just in some States but also in nations of Europe. The power of voters to elect their legislators and enact laws on appropriate punishment has been cut off based on an alleged popular consensus that never existed except in the minds of a few lawyers. Justice Kennedy thus declares “power to the people” and “democracy,” but he is crushing the meaning out of those words as deliberately as any bureaucrat in the Ministry of Truth in George Orwell’s 1984.

Bizarro does not live just in Congress. What made Bizarro and his clones so dangerous to mankind was that, despite the flaws in their thinking, they were just as invulnerable as Superman. They could set out to remake the world in their irrational image (their world was a cube instead of a sphere) without fear of anyone having the power to stop them, except for Superman. In the real world, the claim by some nations to be “supermen” justified their abuse of those they saw as subhuman — Jews, gypsies, homosexuals — and we don’t need judges to think their invulnerability indicates their intellectual and moral superiority to the remainder of Americans.

If judges want to be social engineers, they should resign their cushy life appointments and run for Congress. They can then tell people what their program is and let the voters decide if they make a reasonable case for it. However, if they want the stability of life tenure, they have an ethical obligation to give corresponding stability to the principles and language in the statutes and the Constitution as they were enacted “of the people, by the people, and for the people.”

Raymond Takashi Swenson, Idaho Falls, ID

The Left isn’t right

To this member, Ron Ward’s July column is sadly disappointing — and telling. Much of the criticism of the judiciary is not, as Mr. Ward characterizes it, “out-of-control” or constitutes “demonization.” As members of the Bar sworn to uphold the Constitution and preserve the good name of our profession and the courts, we cannot simply refuse to recognize any legitimate basis in the claims by many in our country that the judicial branch has exceeded its constitutional mandate, that the judiciary legislates when it should adjudicate. We cannot, as Mr. Ward does, simply dismiss the critics as “demagogic.”

With all due respect to Mr. Ward, his derisiveness reflects the very liberal bias that is behind the debate. It is not only intellectually dishonest but an act of willful blindness to refuse to acknowledge any legitimacy behind the growing number of claims that our court system has become a politicized branch of government — not of the Right, but of the ideological left.

How ironically fitting that he uses the metaphor of a “Bizarro World” when, despite citing all the right founding principles (judiciary independence, no “rubber stamp” of ideology, cases decided by law and facts, not by “whims and prejudices,” etc.), Mr. Ward apparently believes that only the Right is wrong. In his 7-point action plan to meet the “disturbing harbingers for the future,” not ONE of them involves any actual self-reflection from the Bar, because again, Mr. Ward utterly refuses to accept that any criticism has a reasonable basis.

An increasing number of people view the judiciary as promoting a leftist ideology that would allow to grant (or deny) individual rights as if they were somehow created by the judiciary, rather than transcendent, universal values endowed to us by our Creator and codified in the Constitution; an ideology that promotes collectivism, not the protection of private property; and most troubling for this member, an ideology seemingly dedicated to the eradication of God — and God-fearing people — from the public square.

I think I have just heard the pot call the kettle black.

Chris Evans, Bellevue

Property seizures? Gays on the bench?

Our WSBA President wrote an article criticizing the many people who believe our courts are eroding our civil rights. He disagrees with these people and infers that they are bizarro.

The Supreme Court of the United States has ruled that government may “take” private property for private use. That is, to me, bizarro. The Supreme Court of Washington State ruled that building a sports stadium is an “emergency” and allows the legislature to use that loophole to avoid referendums. That is, to me, bizarro.

Lawyers and non-lawyers are losing confidence in our judiciary because they make bizarre decisions. Decisions that give power to government entities do so by taking power from the people. When judges rule for the government with rationalization rather that legal precedent, the people have a valid reason to worry about the integrity of the judicial branch.

I agree with Mr. Ward that judicial independence is needed to allow judges to decide cases on the merits. That also requires a judiciary with the integrity to rule against a government entity when it has overstepped its constitutional authority. Where is the resolve to perform the duty of an independent branch? It appears to have wilted away.

None of Mr. Ward’s solutions (“What We Can Do”) will promote independence of the judiciary, except perhaps number 6 (“Getting civics back into Washington schools”).

To promote judicial independence we must first promote judicial integrity. What are Mr. Ward’s suggestions for that? He suggests as a way to promote judicial independence that we work to increase the number of homosexuals on the bench. Does he think that one’s sexual activities are a variable in whether they have a good legal mind? Does the general public think that homosexuals have more or less integrity than heterosexuals?

I am following Mr. Ward’s suggestion number 7 to speak out against critics by writing this letter regarding his article. It is not the justice system that many people criticize; it is the way it is being operated.

Jeanette Burrage, Des Moines
[The author is a former King County Superior Court judge.]

Military members are part of diversity, too

I just got a chuckle from the editor’s page in the July Bar News. The editor set out the standards for diversity as “In short, if there is a body of law in place to protect one from discrimination, institutional diversity efforts seek to make real the promise of the laws. The Bar asks members to voluntarily describe themselves by age, gender, race, disability and the like, consistent with this definition.”

In the same edition of the Bar News was a fine article by Thomas Quinlan describing the anti-discrimination laws protecting reservists and National Guard members. In addition to the protections described in the article please note the anti-discrimination protections for members of the organized militia found in RCW 38.40.040, RCW 38.40.050 and RCW 38.40.110. In view of these anti-discrimination laws and to be consistent with the diversity standard described by the editor, it seems appropriate for the bar association to question its members on their military status and make appointments accordingly.

James Densley, Tacoma

We need more Wi-Fi

Could you see if John Harrington (Watery Wireless Internet Connectivity Extends Boating Bliss, July 2005 Bar News) can install Wi-Fi on our local golf courses? Tee to green x 18 would create “X” billable hours. And how about in our ski areas? Use the laptop going up and ski down with it. Or . . .?

Gosta Dagg, Everett