Sandra Day O’Connor on How to Improve our Court System

February 1, 2008

Retired Justice Sandra Day O’Connor, a Reagan-appointed U.S. Supreme Court Justice, is troubled by a court system that gives special interests great influence on the decisions of the courts. An independent court system is necessary to curb the influence of big money on the government. Dependence on campaign contributions for election creates an opportunity for moneyed interests to undermine the intended independence of judges. Justice O’Connor has spent much of her two years of retirement promoting the urgent need for re-establishing judicial independence in states where the level of campaign contributions plays a significant role in the selection of judges, states such as Washington.

Ironically Justice O’Connor became a trial judge in Arizona through an election, but happily saw Arizona replace that system with a merit system shortly before her appointment to the U.S. Supreme Court. She commented in a November speech that the quality of the Arizona judicial system appreciably improved with the new selection system.

Her second wish was that prosecutors and defense lawyers should be similarly trained and paid, and that they should periodically trade places, going from one side to the other. This she said is how it works in England, something that I didn’t know.

HB 2150 Shelved in Frank Chopp’s Committee

January 28, 2008

HB 2150, the bill that would bring Washington its first meaningful judicial reform in 100 years, has been tabled by the House Rules Committee and is not scheduled for any action this session. Every attempt to reduce the influence of special interests in the selection of judges since the herculean efforts of the Walsh Commission in 1996 has been smothered by the special interests that would see their power reduced.

It is the task of the Rules Committee to schedule the bills that have made it out of committee for consideration on the floor of the house. Frank Chopp, the Chairman of the Rules Committee and the Speaker of the House, hails from the Fremont area of Seattle, which calls itself “the center of the universe.” It turns out that Fremont is also the nurturer of special interests and enemy of reform.

Why is Washington so Regressive?

January 23, 2008

In terms of assuring that we have top quality impartial judges Washington is perhaps the most regressive state of the union. Until 2006 every state, except Washington and three others, had adopted legislation putting limits on judicial campaign contributions. That year Washington passed a law limiting judicial campaign contributions. Generally speaking it limited contributions to the same levels as state legislature campaign contributions, $1400 per contributor. As campaign finance reform goes this is a light measure, which proved of limited value in the 2006 judicial election, where spending broke all records.

Twelve years ago it was officially determined that reform is badly needed. In 1996 the Walsh Commission, a 24 member panel, studied problems with Washington’s judicial system and came up with a number of recommendations. First, it recommended a type of merit system for the appointment of judges, the sort of procedure that is in place in most other states. This involved a commission to select the candidates for appointment by the governor when a position opened between elections, retention elections in which judges were not opposed but voted to stay or go, and among other thing a voters pamphlet to inform voters of the choices when voting for a judge. This would certainly not have put Washington in the forefront of states seeking to enhance the stature of the judicial branch and improve judicial elections, but it would have at least brought Washington into the main stream.

The proposed legislation that grew out of this was not even voted on, languishing in committee. Believe it or not the state legislature would not even vote to authorize the voters’ pamphlet. The Washington State Supreme Court, however, printed one itself.

The special interests in Washington are so powerful that we cannot pass legislation intended to limit their influence on judges. As Sandra Day O’Connor said if we don’t reform this system we don’t deserve imparitial judges.

HB 2150; The Merit System for Washington at Last!

January 22, 2008

Apparently there are others who are appalled at the special interest money pouring into judicial elections, elections for judges who are supposed to be impartial. The primary purpose of the money that is lavished on judicial campaigns is to install judges who will not restrain the effects of the laws that lobbyists push through the state legislature.   Special interests, by their attack campaigns on sitting judges and financing the campaigns of their acolytes seek to implant favoritism in the courts. The special interests that lobby their bills through the state legislature seek to have those same bills, when they become laws, reviewed by judges who are their delegates.  Thus, these special interests are able to have laws passed by the legislature, then reviewed and interpreted by a court that is predisposed to support the interests behind the laws and which depends on the support of those special interests at the next judicial election.

This is a grievous distortion of the system the our forefathers envisioned.  Such influence by special interests was abhorrent to Alexander Hamilton who viewed an independent judicial branch as essential to  the protection of the rights of individuals from the “ill humors of designing men” and the minority party from the oppression of easily influenced popular sentiment.  Lack of an independent judiciary would threaten the constitution and imperil our form of government Hamilton wrote in Federalist Paper No. 77.

Judges are supposed to different than congressional representatives in that our system of government depends on an independent judicial branch, free — to the extent possible — from the influence of lobbyists, special interests and generally the sway of money. That was the founding father’s purpose in making federal judges appointees for life. In Washington a State Supreme Court judge serves a 6 year term, a tenure short enough for the judge’s decisions to be influenced by concern for re-election.

Apparently I am not the only person who sees this as a threat to the notion that our government, through its check and balances between the three branches, was intended to be fundamentally fair. Washington State representatives Rodne, Sullivan, Sommers and Appleton have sponsored a bill to address this corruption of our system of government: HB 2150.

Reform Washington’s Judicial Appointment Process

January 2, 2008

debra-stevens.jpgJudge Debra Stephens, Washington’s Newest Supreme Court Justice already has a website for her election this fall

While I know little about the newest Washington State Supreme Court Justice, Debra Stephens, I do take issue with the process by which she was appointed to the state’s highest court. Little is known about her except that the people quoted in the print media uniformly praise her scholarship and ability. The qualities are certainly essential for any appointment, but there was a certain amount of disinformation circulated from the governor’s office. We were told that she had argued before the State Supreme Court over one hundred times, but a Westlaw search shows only 56 appearances, never on behalf of a litigant but always (except once) filing a brief as a “friend of the court” on behalf of the Washington State Trial Lawyers Association (again, except once). As a “friend of the court” filing an amicus brief, more often than not in the normal course of events she would either not have argued at all or argued only a few minutes as the litigants (the parties directly involved in the case) have a relatively short period of time to present their cases.

She was praised for the diversity of views she encountered as an appellate judge , but she had only just been appointed there and had not participated in one opinion (again according to Westlaw). The governor’s office took some license in promoting her qualifications, which of course does not reflect on her but calls attention to problems with the process.

Justice Bobbi Bridge retired in the time-honored fashion by departing the bench a year before the election, so that the governor could appoint her successor, who could then run as the incumbent in the 2008 election. The strong tendency to reelect an incumbent justice gives the appointing governor great influence on make-up of the supreme court bench. This has made one of the State’s most vital and sensitive offices the subject of political patronage and in the past has diminished the stature and potential of the Court.

Washington needs to seriously examine this appointment process and consider alternatives adopted by other states, such as Arizona. That state has a blue ribbon panel which creates a short list of qualified candidates from which the governor must select her appointee.