Panel Mulls Justice’s Role At Rally

An hour after he was sworn in as a Supreme Court justice of the state of Washington last year, Richard Sanders attended an anti-abortion rally at the state Capitol holding a red rose and made a one-minute speech that consisted mainly of these words:

“Nothing is, nor should be, more fundamental in our legal system than the preservation and protection of innocent human life. By coincidence, or perhaps by providence, my formal induction to the Washington state Supreme Court occurred about an hour ago. I owe my election to many of the people here today and I’m here to say thank you very much and good luck. Our mutual pursuit of justice requires a lifetime of dedication and courage.”

He has been dealing with the consequences ever since.

This week, after 14 months of disputes and accusations of impropriety arising from that appearance at a March for Life rally in Olympia, Sanders was brought before the state Commission on Judicial Conduct. In the equivalent of a civil trial, it held two days of hearings on whether he had violated the state judiciary code of behavior, which bars judges from making statements on “cases, controversies or issues” likely to come before the court. If it decides that he did, the commission could recommend he be removed from the bench.

Along with making Washington history - this is the first time in the commission’s 17-year existence that it has taken action against a Supreme Court justice - the Sanders case has attracted attention around the country because of what it may say about the eternally sticky issue of a judge’s constitutional right to speak out.

“When a judge expresses a personal opinion in a context that suggests he or she has predecided an issue, it suggests litigants aren’t going to get their right to an impartial judge,” said Cynthia Gray, director of the Center for Judicial Conduct Organizations, a information clearinghouse in Chicago for the nonprofit American Judicature Society.

On the other hand, Gray and legal scholars noted, judges also have a First Amendment right to say what they think. The tension between the two is a longstanding fact of life in the judiciary.

The storm around Sanders began immediately after his speech. Some scholars said that because justices in Washington are elected, on a non-partisan ballot, it is better for voters to know what a justice thinks than for opinions to remain in the dark.

Sanders said openly during his election campaign that he was a Roman Catholic and opposed abortion. The American Civil Liberties Union backed him, as did some supporters of abortion rights.

Others said his remarks had ruined his appearance of impartiality and cast doubt on whether he could rule fairly in a case concerning abortion.

State Sen. R. Lorraine Wojahn, the Tacoma Democrat who submitted a tape of Justice Sanders’ speech to the Commission on Judicial Conduct, said it was not specifically the issue of abortion that motivated her, but rather the shock of seeing a judge at such a political event.

Don Marmaduke, the lawyer representing the commission, argued that the justice’s appearance at the rally was improper and overly political in part because he carried a red rose, symbol of “a very highly charged political debate,” and lent his prestige as a justice to the rally’s cause.

Paul Lawrence, Sanders’ lawyer, countered that his client had said nothing to imply that his opinion on abortions would affect his rulings; he also argued that Justice Sanders, whose record on the bench has not hewn to any ideological line, makes his decisions based “on the rule of law, not beliefs.”

The Commission on Judicial Conduct, made up of judges, lawyers appointed by the Bar Association and citizens appointed by the governor, is likely to rule within 90 days.