Two Washington Judges Stand Up For Democratic Judicial Elections
October 14, 2009
These days, when so many legal elites are actively campaigning to abolish judicial elections and insulate judges from their bosses (i.e. the public), it’s refreshing when two eminent members of the bar stand up for the rights of voters. In a recent Seattle Times op-ed, Judge Deborah Fleck of the King County Superior Court and Washington Supreme Court Chief Justice Gerry Alexander laud the state’s system of judicial elections, noting that Washington voters have enjoyed the “constitutional right to elect their judges since statehood in 1889.”
Judge Fleck and Chief Justice Alexander bore straight to the heart of “merit” selection’s deepest flaws:
“Rather than informed voters electing judges, both the selection of the [merit] commission members and behind-the-scenes contacts with them create opportunities for special interest groups to have substantial influence over who the judges ultimately are.”
Both judges understand clearly why the public role in judicial selection must be preserved and make a strong case for contested elections:
“Judges have tremendous power over people’s lives, liberty and property. We must make tough decisions that sometimes run counter to public opinion. With our current election system, if a judge is challenged because of an unpopular decision, at least the public has candidates to choose from. Under the other system [merit selection], judges may hesitate to make correct but unpopular decisions, knowing they may be judged on that decision alone in a retention election, rather than on their qualifications.”
Judge Fleck and Chief Justice Alexander flirt with a couple bad ideas, while stopping short of explicitly endorsing them (like public financing of judicial campaigns). But on the whole, they express a healthy skepticism of “a less-transparent commission system that restricts voter choice” and strong support for an election system they believe fosters an fair, independent judiciary:
“Washington’s election system provides the people with capable judges who tend to have a degree of humility that balances their broad powers, in part because they are accountable to the voters.”
Amen.
A Conclusion Unsupported By The Data: A Professional Look At The AJS/Washington State Poll
January 28, 2009
As readers know, I found the recent survey of Washington state voters and their attitudes about judicial elections vs. “merit” selection a little squirrely. The fact that the survey was funded by the American Judicature Society and George Soros’ Open Society Institute certainly raised a red flag. Both groups have spent millions in an organized campaign aimed at abolishing a voter’s right to elect state judges.
To help sort through the 23-page report, I asked Dr. Whit Ayres to take a look. Dr. Ayres is nationally respected pollster whose clients have included presidential candidates, Senators, Member of Congress, governors and major corporations. Roll Call recently called the Ayres McHenry & Associates polling firm “one of the best in the nation.” Here’s his analysis.
GUEST POST BY DR. WHIT AYERS
The Washington State University survey of the state’s voters regarding presumed support for commission appointment of state judges contains an intriguing analysis of public opinion data.
The mail survey methodology, while unusual in this day and age, was professionally accomplished, and defensible given the complexity of the questions presented. Consequently I have no quarrel with the results the survey produced.
But I take strong exception to the conclusions that the researchers purport to base on those results. For the results support a conclusion that is diametrically opposed to the one reached in their analysis. The researchers conclude that Washington voters are less committed to electing their judges than commonly thought. But their findings show that the exact opposite is the case.
First, the survey establishes that Washington voters hold an overwhelmingly positive view of electing judges, and a negative view of having judges appointed. By a margin of 68 to 9 percent, voters hold a positive rather than a negative view of “non-partisan elections,” and by 64 to 10 percent they view “having contested elections” positively. On the other hand, having the “Governor filling vacancies” is viewed positively by 27 percent and negatively by 31 percent.
Respondents were told that, in the current system of judicial selection in Washington, 40 percent of judges reached the bench by non-partisan election, and 60 percent reached the bench after being appointed by the Governor. 26 percent of voters thought that system was good or very good, while 35 percent thought that system was bad or very bad. The primary reasons why voters thought the current system is bad are that “(a) substantial number of respondents commented that too many judges are appointed by the Governor and that such appointments tend to be inappropriately partisan and political. A large number of respondents also voiced concern that they were frustrated by the large number of uncontested elections and the lack of judicial accountability present in the current system.” In other words, it is precisely the large number of appointed judges and the lack of sufficient contested elections that leads voters to conclude that the current system is bad.
When asked about a commission system for appointing judges, the survey indicated a preference for a commission system over the current system. The results above show the reason: voters are frustrated that the current system does not include enough contested elections. Indeed, when asked further about a commission system, the respondents zeroed in on the lack of contested elections as the key drawback: 32 percent thought “not having contested elections” was positive, while 36 percent thought it was negative.
Consequently I do not understand how the researchers can conclude: “(I)t has been a widely held belief among people who have followed judicial politics in the Evergreen State that “Washingtonians would never give up their right to elect their judges”. Given the evidence of citizen interest in and support for a merit selection process documented in this survey, it may be time to set aside this long-established belief and adopt a stance more open to the possibility of change in how the state’s judges ought to be selected.”
No, it is not time to set aside this long-established belief. It is time to read the data in this study that show Washington voters have an overwhelmingly positive view of electing judges in contested elections, they would like more contested judicial elections, and they do not support any system that would mean more appointments and fewer contested elections.
– Whit Ayres
The Seattle Weekly Supports Judicial Elections
October 23, 2008
The Seattle Weekly – the alternative weekly paper in Seattle, WA, owned by Village Voice media – recently published a long cover story, “The Way We Elect Judges Is A Sham,” by Damon Agnos. It’s a very long piece that basically makes the refreshing argument that judicial candidates should engage in robust debate in judicial campaigns to make the case to voters that they deserve a spot on the bench. Some highlights:
“Of the 53 King County Superior Court spots up for election this year, only six were contested …. 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…
“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.’”
And …
“‘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.”
And …
“The reaction to the Alexander/Groen race [for WA Supreme Court] demonstrates that it’s not a lack of information so much as a disturbance of the old order that irks the legal establishment. When an incumbent is challenged or attacked with ads that would hardly raise an eyebrow in the other branches of government, look for a firm and loud response from the organized bar. When a challenger with a substantive platform drowns in the apathy of judicial campaign culture, while the incumbent opponent boasts of endorsements and ratings and offers nary a peep of a defense of his or her record, nobody seems the least bit concerned.”
And …
”When you stop to think about it, it’s hard to see why the legal establishment would ever want to open up elections. Why should those relied upon as counsel in the appointment of judges and who call the shots in sham elections want to cede their role to an apathetic, uneducated, and potentially reactionary electorate? Better to retire early and keep the entire election process in house.”