Rep. Hunter Abell: The people, not the governor, should decide our judges

Justice Mary Yu recently announced that she is stepping down from the Washington Supreme Court. This creates a vacancy for Gov. Bob Ferguson to fill. It is a unique opportunity for our new governor to build and strengthen the public’s confidence in our judicial branch of government. He should take it.

A bit of background: Washington has a long history of electing judges, a feature of our late 19th century Washington state Constitution. The key to electing judges is that, if elected, a judge will complete his or her term.

Unfortunately, in recent years, a corrosive trend has developed in which senior level judges depart before their term expires, thereby allowing the governor to appoint their successor without input from the Legislature or the public. The newly appointed incumbent, now adorned with the title of “judge” or “justice,” is almost invariably retained by the public at the next general election. Indeed, incumbency is often a deciding factor for the public in nonpartisan, low-information judicial elections.

This “revolving door” of midterm judicial retirements is an open and unsavory secret in the legal world. Currently, more than 80% of the judges on the Court of Appeals were initially appointed to their positions by the governor or one of his predecessors. The same is true for a majority of the state Supreme Court.

This is a problem. In a time of decreasing public trust in our institutions, we cannot allow the judiciary to be viewed as a wholly owned subsidiary of the governor’s office or the state Democratic Party. That is especially true when one political party has controlled the governor’s office in Olympia for over four decades. Indeed, a vital role of the judiciary is to serve as an impartial check on the legislative and executive branches alike. As a result, we must have a judiciary that is nonpartisan and independent of whichever party controls the governor’s mansion.

To fix the situation, I introduced legislation last session on this subject. The legislation would require a supermajority legislative confirmation of the governor’s nominations to vacancies on the state Supreme Court and Court of Appeals.

Although my legislation did not advance, Gov. Ferguson has a unique opportunity with his first nomination. He should affirmatively seek a nominee who has approval and support from both sides of the political aisle. He should appoint someone who is universally recognized as nonpartisan and a constitutional expert. Finally, he should appoint someone who will pledge to serve only as a caretaker for the rest of Justice Yu’s term, thereby allowing the people to have their say in an open election in 2026.

If Gov. Ferguson does so, he will take a great step toward increasing the public’s trust and confidence in our state’s highest court. In this time of division, rancor and deteriorating public trust, it may be one of the greatest services he can do for the people of Washington.

State Rep. Hunter Abell, R-Inchelium, represents the 7th Legislative District in northeast Washington. After a 20-year military career, he is currently a commander in the U.S. Navy Reserve. He is an attorney and served as a judge of the Ferry County District Court.