November 17, 2010 in City

Vestal: In judicial elections, judgment often lacking

By The Spokesman-Review
 

On the Web: Read previous columns by Shawn Vestal at spokesman.com/columnists.

I have a confession: I’m not 100 percent sure who I voted for in the Supreme Court race.

I’m pretty sure. Almost positive. Odds are 5-to-1 or better that I recall which of these guys – Justice Richard Sanders or probable winner Charlie Wiggins – got my ill-informed, ill-considered vote.

I’d be ashamed if I didn’t suspect I was so typical.

The margin between Sanders and Wiggins has been thin as a wisp, as ballot-counting goes on. It’s the judicial equivalent of Gregoire-Rossi or Bush-Gore, if no one knew what they were doing when they voted in those races and then paid scant attention afterward. In this case, the winner will be able to thank a lot of voters like me – people who shouldn’t be making this call to begin with.

Oh, I know. It’s elitist to question the wisdom of the electorate. So I’ll just question my own: I think I can do a fine job of picking a candidate for president, Senate, City Council, County Commission – even auditor or prosecutor, on a good day – but I have no business electing a judge. And yet there I go every time, marking a box based on a friend’s advice or something I read, voting for a person I wouldn’t recognize if they sentenced me to jail.

But hey – power to the people, right?

Except that power doesn’t flow to poorly informed people. What flows to poorly informed people in elections is one of two things: a vacuum or a wave of bought-and-paid-for manipulation.

Even the responsible sources, such as the voters guide or the votingforjudges.org website, will give you biographical background, a listing of bar associations joined and firms worked for, a summary of endorsements or ratings by civic organizations, a little self-promotional flapdoodle written by the candidates – and precious little that might tilt you one way or the other.

The Sanders-Wiggins race has legitimate issues, drew news coverage, and the better voters among us likely did have a foundation for making an informed selection. By comparison to a typical local judges’ race, the amount of information available was massive.

Sanders trails by more than 5,700 votes – out of 1.8 million counted – and it’s unlikely he’ll catch up. In 15 years on the court, he has thrust himself into more controversy than any other judge around – once marching at an anti-abortion rally and on another occasion shouting “Tyrant!” at U.S. Attorney General Michael Mukasey. Yet I bet a significant lump of us voted either for or against him based on less consideration than we give to picking a carton of ice cream.

When most of us don’t know what we’re doing in an election, who gains power? Consider what former Supreme Court Justice Sandra Day O’Connor says: “We are now facing greater threats to judicial independence than we did in the past.”

She said at a Seattle conference last year that the threat comes from corporations and interest groups donating to campaigns in the hope of currying favor.

“The result has been an arms race in funding, making it so a campaign for state judge is often as expensive, or more so, than a campaign for a U.S. Senate seat,” O’Connor said.

She supports a combination of appointment and election – judges would be appointed by a nonpartisan commission, and then stand for election to keep their seats. Makes sense to me, but plenty of smart people disagree. The state bar association backs elections, and supporters say they protect the judiciary from undue political influence. Since there’s no undue political influence in elections, I guess.

David DeWolf, a law professor at Gonzaga University, has written in support of elections.

“To borrow from Winston Churchill’s description of democracy, electing judges is the worst way to choose them – except for all the others,” he wrote in an essay at Lawdragon, a legal website, a few years ago.

DeWolf argues that elections are the most reliable way to make sure judges adhere to the law and not an agenda.

“Judges who have been liberated from the concern about re-election are much more likely to believe themselves to be accountable to no one but their own consciences,” he wrote.

I’m not sure the electorate is devoted to the law over ideology. In fact, I’d bet the opposite is true – people are generally committed to personal beliefs, not case law and its careful application. Elections exacerbate the problem, since most voters have no idea how a judge applies the law over time – none whatsoever. Even so, O’Connor’s idea would manage to hang the specter of re-election over the heads of the appointed judges, which ought to speak to concerns about runaway conscience-heeding.

Of course, she served on the Supreme Court – one that people often fault for being too political or ideological.

But no one suggests that we ought to elect those justices, and it’s a good thing. When pollsters for the University of Washington conducted surveys in October, they asked registered voters if they knew who John Roberts was.

John Roberts, the most powerful judge in the land and, one would think, among the most famous. You could safely say he’s better known than Richard Sanders or Charlie Wiggins.

Less than a third of those polled – people whose votes will define our state Supreme Court any day now – even knew who he was.

Shawn Vestal can be reached at (509) 459-5431 or shawnv@spokesman.com.

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