Judicial Roulette: Is This Any Way To Pick A Judge?
THERE'S something wrong with the way we pick judges when an excellent judge like Rosselle Pekelis is knocked off the state Supreme Court for reasons unrelated to intelligence, fairness or experience, and probably for no reason at all.
On Tuesday, voters prudently turned back ballot measures that are poorly written or have unintended consequences. But unlike initiatives, where uninformed or uncertain voters can simply vote no, judicial races come down to choosing between candidates most people have never heard of.
Time and again, voters polled say they feel they don't have sufficient information to make an intelligent choice. Nearly half of those voting in general elections for president or governor fail to vote for judicial candidates on the same ballot.
Many who do vote are taking stabs in the dark. In some races, the result is near-random selection as marginal candidates, knowing that an easy-to-read name can matter more than professional qualifications, pile onto the ballot.
The victory of Charles Johnson, an unknown who did not mount a campaign, over incumbent Supreme Court Justice Keith Callow in 1990 can't be written off as a fluke. (Fortunately, Johnson has turned out to be a good addition to the court.)
Three years ago, 13 candidates competed for five positions on the King County Superior Court. Some very qualified candidates lost to people rated unqualified by the local bar association. Last year, challenger Kevin Dolan nearly unseated Justice Richard Guy in the primary, also without campaigning.
And now we have voters rejecting the egregious Referendum 48 by a huge margin only to send two staunch supporters of the measure to the bench.
Richard Sanders, who as consultant to the Building Industry Association of Washington testified before the Legislature in support of the property-rights measure, will become the Supreme Court's first property-rights justice. And Jeanette Burrage, a perennial candidate and property-rights advocate, gets on the King County Superior Court with just a third of the vote in a ridiculous five-way race. Both Sanders and Burrage were rated not qualified by the King County Bar Association.
The two races show how twisted judicial elections have become. On the one hand, sanctimonious restraints on political speech imposed by the state Code of Judicial Conduct cause some candidates to gag themselves on every topic lest they violate the code. On the other hand, Sanders and Burrage practically waved the property-rights banner. Sanders, for one, refuses to say whether he will recuse himself from property-rights cases.
Having single-issue politicians is bad enough. Do voters really want single-issue judges?
The nonpartisan Supreme Court contest was also boorishly partisan. Instead of challenging Pekelis' qualifications, Sanders attacked her for being an appointee of Gov. Mike Lowry. His campaign tried to turn the race into a referendum on the governor, though Republicans such as King County Prosecutor Norm Maleng and former Gov. John Spellman supported Pekelis.
Who knows whether Sanders' partisan slams or widespread voter ignorance did the job. It doesn't much matter; Tuesday's results will fuel growing distrust of the judiciary and perhaps hasten movements for reform.
A commission, appointed by Gov. Lowry and Chief Justice Barbara Durham earlier this year, is now working on improving judicial selection. The group, headed by Ruth Walsh, will issue a report early next year.
Dozens of states have judges appointed by nonpartisan commissions, with retention elections where voters either approve or reject the sitting judge. Some states have partisan elections. And a few states even give governors exclusive power to appoint judges for life.
The Walsh commission isn't likely to recommend ending nonpartisan elections. But it probably will push for comprehensive judicial voters' guides, performance appraisals of judges (a few states conduct formal evaluations before elections), and higher qualification requirements for candidates. Citizens should also get a say in filling court vacancies that are currently left to the governor's discretion.
Lowry's dubious appointment record - the worst being Bernard Heavey to the Superior Court in Skamania and Klickitat counties - may have hurt Pekelis as much as anything. Creating a nonpartisan citizens commission to recommend appointments might save future governors from self-inflicted Lowry-like embarrassments.
More media focus clearly would help. Most news editors and producers know that what happens on the Supreme Court ultimately has greater impact on people's lives than a new baseball stadium or who sits on the city council. If the Pekelis-Sanders race had received a tenth the attention paid to the stadium vote or half the coverage of the shenanigans in the Podlodowski-Wineberry race, the result might have been different.
Instead, judicial lotto is tossing up individuals to rule on matters of life, death and money who haven't the experience or temperament to do the job.
Terry Tang's column appears Friday on editorial pages of The Times.
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