Courts Must Rise Above Politics
If the judicial branch of government is as impartial as legal theorists contend, why does the Senate wage fierce battle over Supreme Court nominees? Why do special interest groups pour more and more money into judicial election campaigns? Why have candidates with little experience begun to file for judicial office, flaunting special-interest-group support?
The truth is, the judiciary has brought this problem on itself. Every time a judge invents law - as in the recent judicial fabrication of a “right” to assisted suicide - the public realizes anew that the ideology of one who makes law by judicial fiat is at least as important to weigh as the ideology of a legislator. Every time a court takes over management of forests, fisheries, prisons or schools, the public becomes as interested in judges’ policy preferences as it is in those of a governor.
Granted, federal rather than state judges have perpetrated the most dramatic departures from the judiciary’s constitutional role.
But that hasn’t stopped interest groups and candidates from injecting big money and hot ideology into races for judicial power at the state and local level.
Justifiably alarmed, a commission organized by Chief Justice Barbara Durham of the Washington state Supreme Court has just spent a year studying the way judges should be chosen. Last week, it issued a thoughtful, significant set of recommendations.
Some have obvious, straightforward appeal. For example:
Publish a voters pamphlet prior to judicial elections, containing factually verified information about candidates’ qualifications, careers and personal philosophies. Perhaps because they lack this kind of information now, up to 50 percent of voters leave their ballots blank in judicial races.
Set minimum qualifications, lacking now, for judicial office. For example a candidate for Supreme Court, the commission says, should have at least 10 years’ experience as an attorney or judge and seven years of residence in the state.
Limit the size of expenditures and contributions in judicial campaigns. In recent years the cost of judicial campaigns, from the Supreme Court down to traffic court judge, has soared. This forces would-be judges to consider begging interest groups for campaign donations. That, in turn, threatens the judiciary’s impartiality, a public asset this state must work harder to protect.
The commission also recommends that Washington abandon its system of open elections for judges. Instead it recommends a variation of the Missouri Plan, used in 34 states: The governor would fill each judicial vacancy by appointment, choosing the appointee from a list prepared by citizen nominating committees. After 12 months on the bench each appointee would face an open, contested election. Thereafter, incumbents would appear alone on the ballot and voters would be asked whether to keep them. The state would develop an objective system to evaluate judges’ performance and voters would get the results.
Other states can testify this method offers qualified candidates, retains accountability and reins in the politics. But much depends on the citizens nominating committees. Would they, rather than the ballot box, become the forum for ideological power struggle?
The answer depends on the details of the commission’s proposals, as they are translated into law. Stay tuned, voters. These reforms could improve the integrity of your courts.
, DataTimes The following fields overflowed: CREDIT = John Webster/For the editorial board