The Way We Elect Judges Is a Sham

You may not have noticed, but we elected a few judges this summer. As usual, the races passed quietly. Of the 53 King County Superior Court spots up for election this year, only six were contested, and three of those were settled when one candidate got more than 50% of the primary vote. Forty-seven incumbents filed for and automatically received another term. All three state Supreme Court justices who are up for re-election also won in the primary. If you're counting, that leaves three contested races out of a possible 56 for you to decide in November.

Judicial races are the ballot's black hole, its flyover country. In fact, the backers of Proposition 1, the big Sound Transit package, worry about appearing on the ballot below the judicial candidates, as many voters traditionally call it quits upon reaching that list of unrecognizable names.

The irony is that judges can have far more direct and tangible impact on people's lives than most anyone else you'll vote for—deciding individual fates on a daily basis. Yet we hardly know anything about them. And that seems to be exactly what the legal establishment wants.

"The organized bar generally dislikes election of judges," says Seattle attorney Michael J. Bond, who unsuccessfully ran for a Supreme Court seat this summer. "Most lawyers think the public is stupid and lawyers know best."

Instead of a vigorous debate about the crucial legal issues of the day, judicial campaigns are largely bloodless and uninformative. Bar associations hand out ratings such as "Very Well Qualified" that do little besides remind you of those "Terrific!" stickers your teacher put on your homework in grade school. Candidates refuse to discuss anything substantive. And there's rarely an open seat to prompt more vigorous contests. Most judges don't wait until election time to leave the bench; they leave midterm, allowing the governor to select a replacement—who then runs as the incumbent.

U.S. Supreme Court Justice Antonin Scalia once wrote: "The first instinct of power is the retention of power, and, under a Constitution that requires periodic elections, that is best achieved by the suppression of election-time speech." That perfectly sums up the state of judicial elections in Washington—and why it needs to change.

Former Washington Supreme Court Justice Phil Talmadge told The Seattle Times in 2006, "I want my judges to be just as the robes are supposed to symbolize—a blank slate." This desire is consistent with the traditional model of judicial elections: genteel affairs in which candidates tout their character but not their views on the law, lest they appear to be biased or demagogues. The culture is underscored by Canon 7 of the Washington Code of Judicial Conduct, which prohibits "statements that commit or appear to commit the candidate with respect to cases...or issues likely to come before the court."

But that prohibition has been used to justify a blanket refusal to engage in substantive discussion. "When it comes to [commenting] on specific issues or even old cases, you come closer to the line, and may even cross it," says Michael Spearman, a former King County Superior Court judge who ran for the state Supreme Court in 2002. "The better course is simply not to put yourself in that position."

"I think sometimes these canons are used as a pretext not to talk about what you believe," says Washington Supreme Court Justice Richard Sanders, who is known for being outspoken on the campaign trail. "Maybe incumbents think that they can get more votes by not giving people a reason to oppose them." Asked if he would call it a dog-and-pony show, John Strait, a legal ethics professor at Seattle University Law School, says, "It's worse than that. It's as though we tell voters, 'There's a dog-and-pony show behind this door. Trust us.'"

Where candidates in other branches of government discuss issues and philosophies, judicial candidates tout their integrity and invoke their credentials, endorsements, and ratings of qualification, as if those should suffice. It's reminiscent of the Saturday Night Live sketch in which an insecure middle manager played by Will Ferrell attempts to assert his authority and quash dinner-table dissent by declaring, "I manage 49 people! I drive a Dodge Stratus!"

Like the virgin bride, the blank-slate judge is a counterproductive fantasy whose time has passed. The legal academy abandoned the idea that judges can simply mechanically apply the law more than a century ago, when a young mustachioed jurist named Oliver Wendell Holmes called bullshit on an old bearded one named Christopher Columbus Langdell. To pretend that highly experienced candidates haven't formulated strong opinions on the law and the act of judging is a farce. "Every sitting judge or justice has a judicial philosophy," says Sanders. "They are predictable, depending on how well you know them or research them. We have patterns of thought that we repeat. Everyone has an opinion."

Yet today we ask judicial candidates to pretend that they haven't developed such opinions, so as not to give the appearance of favoritism or commitment. Why shouldn't a judge be able to opine generally but rule specifically? If we're going to trust voters to select judges, why shouldn't we trust them to make informed, responsible decisions?