In fairness, let's appoint all judges

Funny, but most people think we elect all our judges in Washington state.

Technically, maybe. But the truth is most judges get to the bench by appointment when their predecessors resign, move up or pass away — then often they aren't challenged at election time.

A recent Washington State University study found two-thirds of the 21 current state Court of Appeals judges were first appointed, and 111 of the state's current Superior Court judges — that's 58 percent — were initially appointed. Historically, more than half of the state's Supreme Court justices initially were appointed, though now eight of the current nine were first elected.

Here's the kicker. Once appointed, judges often are not challenged. WSU professors David Brody and Nicholas P. Lovrich studied judicial elections in the state's five most-populous counties since 1994. Of the 74 new Superior Court judges, 73 percent of them were appointed. Of the 54 appointees, 33 never had to stand for election.

Seems to be working OK. I say, let's appoint them all.

People aren't up in arms about the judiciary. But almost 140 judges, lawyers and others were concerned enough to attend the recent Washington State Summit on Judicial Selection and Judicial Independence, organized by the King County Bar Association and other groups at Seattle University. Within the past five years, big money has started pouring into other state's Supreme Court races along ideological lines, especially on the issue of tort reform.

Elections are a great way to select presidents, legislators and school board members. Voters look for someone who thinks like them, who will be an advocate and a fighter.

In a judge, you don't want ideology; you want fairness. In the 2004 race for an open Supreme Court seat, the building industry flooded the coffers of candidate Jim Johnson, a lawyer who had represented the Building Industry Association of Washington, among other clients. He out-raised his opponent, the well-respected Appeals Court Judge Mary Becker, by almost 3:1. Many environmental groups supported Becker because of who was contributing to Johnson's campaign.

Complicating judicial election campaigns is the difference in how candidates conduct themselves.

One of the high court's most controversial members, Justice Richard Sanders, eschews the prevailing ethic that judges should keep their own counsel on how they might rule on different issues. In 1995, he ran as a property-rights advocate. He has been thrice elected — and twice been before the Commission on Judicial Conduct. He was reprimanded for talking to an anti-abortion rally — a decision that was overturned — and recently admonished for talking to convicted sex offenders at the state Special Commitment Center.

Many judges keep quiet, which can be confusing for voters. The quiet judges are not as compelling as judges who unabashedly whisper sweet nothings about property rights, environmental devotion or — ahem! — press freedom.

And that is a peril to a court system charged with fairness. Too often, voters stop voting before they get to the judicial races. The falloff is 20 percent, according to national studies. People don't know enough about the candidates to decide. But some give it a shot anyway.

So you get judges who have "nice" names — Johnson is popular. Besides Jim, there's Charles, who ousted Justice Keith Callow in 1990.

If judges were elected, WSU's Brody favors ways of holding them more accountable, including providing substantive published judicial-performance evaluations.

Good idea, but I still prefer an appointive system where judges are vetted for their judicial philosophy, temperament and diversity — not just ethnic but also geographical. The state Supreme Court is staffed exclusively with Western Washington residents. In 1989, the state bar's Young Lawyers Division proposed the concept and, in 1996, the Walsh Commission recommended a version with initial appointments and then retention elections. The ideas didn't go far. Thank the commission for the judicial voter pamphlet, which at least contains candidate statements.

The King County Bar Association is right to start a conversation about how judges are selected and how they retain their independence in Washington. Better to be asking these questions now before the really big money arrives.

Kate Riley's column appears regularly on editorial pages of The Times. Her e-mail address is kriley@seattletimes.com