Judicial Appointments and Retention Elections

January 21, 2008

I had a startling experience when I argued to the Washington State Supreme Court a few years back. I represented three couples who lost their homes in a landslide following heavy rain. Their homes had been built in Seattle on fill without any landslide protection. This loss would have been prevented with standard engineering features. They, however, were barred from suing because of Washington’s statute of repose which says you can’t sue anybody in the construction industry 6 years after they leave the job. The landslide happened 6 years and 3 months after the occupancy permit was granted by the City and only a few months after the last of the three units had sold.

At the hearing a representative of the insurance industry spoke during the time alloted to the construction people. Dressed in a silk pinstripe suit (literally), he pointed his finger at each of the justices and said that the insurance companies were going to take note of how each justice voted and take appropriate action when they ran for re-election.

The oral arguments were a little unusual in another way. Justice Chambers asked the lawyer for the defendants the only question of the afternoon. He asked “What if a school were built and six years and three months later it collapsed on the school children. Would the statute of repose block all recourse?” The questin was answered “Yes” and there was no further discussion.

I thought that the insurance industry’s lawyer had blown it when he explicitly threatened the justices. He I felt had attacked the honor of the Court. Surely the justices would not permit such behavior I thought. The decision: unanimous upholding of the statue of repose and loss of claims by the victims of the rankest decision to put consumers at risk of their lives.

Since then I have thought that it was important to distance the Washington Supreme Court from the influence of special interest groups. I have cringed at judicial elections where special interests have an advocate running for a judicial position. Money typically flows in from out of state and the trade groups which will benefit by this person’s election throw money into a campaign which is at best misleading and could fairly be called sleazy. The role of special interests and their money in judicial elections has caused me to re-examine by knee jerk Jeffersonian preference for the popular election of appellate judges.

Reform must begin with the structural avoidance of judicial appointments as political patronage. An independent commission giving the governor a short list from which judicial appointments must be made furthers that purpose I think to a meaningful extent. But what about judicial elections? Shouldn’t merit be the determining factor rather than catering to special interests?

A judicial election is by its nature an anomalous. When we elect people for other offices we are electing someone to represent us, to factor our interests into his or her decision making process. When we elect a justice on the other hand we are not getting a representative. We are selecting someone who is charged with the impartial interpretation and application of the law. A judge is not supposed to represent anybody. (This has led to conflict in other states where a justice has declined to recuse himself (so far only men have done this) when an important election contributor has appeared before him.)

The Washington legislature is now considering reforming both the appointment process and judicial elections. This is the sort of “below the radar” activity that people ought to involve themselves in, as it could have an appreciable long term effect on the governance of the State by making the judicial branch less vulnerable to the influence of special interests.

Washington’s current system of subjecting its justices to periodic popular election is widely criticized for creating a bench that is particularly vulnerable to the influence of special interests. Justice Sandra Day O’Connor in her concurring opinion in Republican Party of Minnesota v. White, talking about the same system in Minnesota, said:

Minnesota has chosen to select its judges through contested popular elections instead of through an appointment system or a combined appointment and retention election system along the lines of the Missouri Plan. … If the State has a problem with judicial impartiality, it is largely one the State brought upon itself by continuing the practice of popularly electing judges.
Justice O’Connor believes that Washington’s general election system is inherently inconsistent with judicial impartiality.

The alternative used in some form by two thirds of the states is called the Merit System or the Missouri Plan, as it was first adopted in Missouri nearly 70 years ago, in 1940. Since then most states have adopted this system or some variant of it. It is a compromise (seems fitting for Missouri) between the federal system of life-time appointment and popular election of judges, which was adopted by many states in the Jacksonian age and by the rest of them during the populist era at the beginning of the twentieth century.

The Missouri Plan involves a nonpartisan commission, which prepares a short list of qualified candidates from which the governor must select for any judicial appointment. Each judge then goes before the electorate periodically to determine whether she will retain her job. The judges are unopposed the sole issue voted on is whether the judge will retain her position or be replaced. If the majority votes thumbs down, then the selection process is restarted for the open position.

The bill being considered by the legislature is a hybrid. That is, the Missouri Plan would apply only to appellate position; superior court judges would still be appointed at the governor’s sole discretion.