Nothing confounds voters like a state Supreme Court race without an incumbent. Yet it is one of the most important votes we cast. The court is arbiter of what is legal under the strong protections afforded by our state constitution. When there is no incumbent to fall back on, voters need other yardsticks to help them decide between candidates.
Ratings by the King County Bar Association, the largest and most powerful county bar in the state, have an air of authority and neutrality about them. Yet this year, two of the candidates in the open-seat race for Supreme Court, Position 3—Jim Johnson and Stan Morse—have declined to participate in the ratings process, claiming it is flawed.
The bar rated Johnson "adequate" and did not rate Morse. It gave its highest rating—"exceptionally well qualified"—to King County Superior Court Judge Michael Spearman and rated the fourth candidate in the race, Mary Fairhurst, "well qualified." So can the public rely on the bar ratings as a fair, informed measure of judicial qualifications?
"I became convinced their process is not honest or objective," says Jim Johnson, a passionate conservative. "It became apparent from their track record that it was about more than credentials."
Johnson served for 20 years in the state attorney general's office, where he was a controversial litigator on Indian law and initiatives. Since leaving public service, he has taken on a number of high-profile conservative clients, such as initiative king Tim Eyman; the Building Industry Association of Washington, which crusades for individual property rights; and the Evergreen Freedom Foundation, which fights to privatize public education. He also represents the Washington State Grange in its effort to preserve the state's beloved blanket primary from challenges by the Democratic, Republican, and Libertarian parties.
Johnson says he understands the difference between the role of the judge "to give honest and objective consideration" and that of a lawyer to doggedly represent the interests of his clients. He was not sure, however, that the bar could look past his outspoken conservatism and judge him on the basis of his credentials.
King County Bar President Caroline Davis says politics has nothing to do with the process. She says the bar relies on an extensive questionnaire, 20 to 30 references for each candidate, and an in-person interview. "We work really hard to make it a fair process to help the bar and the public make the best selection," she says.
In 1995, Richard Sanders, a libertarian attorney, was seeking election to the Supreme Court. The bar gave him their lowest rating, "not qualified." He won anyway and was re-elected in 1998. While his court tenure has been controversial, few legal observers would now say that he is not qualified to hold the office. Sanders advised his friend Johnson to eschew the bar's rating. The bar rating "is insidious because it should be neutral but it's not," says Sanders.
Davis says the bar doesn't comment on an individual's ratings or provide explanation. "We aren't engaging in a debate." She notes that other organizations that provide ratings operate in a similar fashion.
Stan Morse refused to participate because he thinks the bar is biased geographically. Morse is a colorful candidate who is running as an Eastern Washingtonian, even though he practices both in Redmond and Chelan. According to Morse, "there is a perception on [the eastern] side of the mountains that Olympia is evil." He hopes voters will recognize the need for geographical balance on the court. A lawyer who has practiced for 23 years, Morse thinks a disconnect has developed between the public and the law. He has pledged, if elected, to "tour the state and talk to people about their opinions." Morse believes the power of a relatively narrow group like the King County Bar is part of the disconnect problem.
"The King County Bar wields a tremendous amount of power, yet who cares what the Spokane, Yakima, or Chelan bar associations think?" he asks. Morse cannot, however, provide a single example of geographical bias on the part of the bar.
The bar's Davis says emphatically: "We want the best candidate, not the best candidate from King County. Geography isn't what makes great judges."
Judge Michael Spearman says he doesn't always agree with the bar ratings, but "overall they have done a fair job." Spearman says he thinks the bar does a particularly good job with sitting judges. The bar can "rate [sitting judges] on their ability to be fair and impartial." Practicing lawyers really have insight "into whether [a judge] can set aside his own personal beliefs and rule on the law," Spearman argues. That attribute is the centerpiece of Spearman's campaign. It is why, he argues, he has endorsements from over 100 judges. In addition, he has been rated "exceptionally well qualified" by all six of the bar groups that have rated him so far.
Spearman has been a judge since 1993; before that he was a criminal defense attorney for 12 years. "I don't think I appreciated as a lawyer how difficult being a judge is. As a judge you have to pull back, recognize that when a case is presented to you that you have certain leanings and then you have to put them aside." After listening to arguments from the advocates, "you have to do your own research, follow up on the law, and do what it is that the law requires regardless of whether it's popular or one side is more sympathetic to what your predilections are."
Mary Fairhurst was disappointed by her rating of "well qualified" from the King County Bar. "It was thorough," she acknowledges. "They tried to look into all aspects. They put a lot of emphasis on judicial experience. That's not necessary for the Supreme Court." She cites former Justice James Dolliver as a prime example of a Supreme Court member who had a splendid tenure on the state's highest bench without any prior judicial experience.
Fairhurst has spent the past 16 years in the attorney general's office working on a variety of civil-law matters: "tax cases, construction litigation, a class action involving the civil rights of prisoners who were challenging the conditions of their confinement. . . ."
Did the bar's rating reflect a concern that she had limited experience—only representing the state and only in civil matters? "I represent the citizens of Washington," she replies. "I don't see it as a limitation at all."
Fairhurst points out that she is the only candidate in the race who has worked for the Supreme Court. After law school, she clerked for two justices—William Williams and William Goodloe.
She claims her breadth of experience is more important to the voters than the bar rating. She says the bar rating "is just one source of information. The citizens don't vote according to the bar association ratings."
Voters should elevate King County Superior Court Judge Michael Spearman to the state's highest bench. He sits head and shoulders above his opponents in the race for state Supreme Court, Position 3.
It's not clear that Olympia attorney Jim Johnson could set aside his beliefs about individual liberty and property rights in order to rule on the law.
Stan Morse is a guy we'd like to go on a trip around the world with, but not have sit on our Supreme Court.
Mary Fairhurst serves the citizens of Washington well by working in the attor-ney general's office, but articulates no reason to elect her to any office, let alone Supreme Court.
Spearman combines judicial experience with a passion for justice that we find extremely compelling. While a member of the criminal defense bar, Spearman was involved in a wide range of community activities that demonstrated his deep commitment to making our justice system fairer. Since joining the bench, Spearman has consistently received high praise from lawyers and other judges—evidenced by his overwhelming endorsements in this race. Finally, he reminds us that in the post-Sept. 11 world, we must rely on the courts to protect our liberties from good-intentioned legislators who might compromise our freedom in an effort to protect it.
Seattle Weekly Editorial Board