Some amount of attention has been paid in recent years to the enormous amount of special interest money that has flooded into our state Supreme Court races. This is part of a nationwide pattern in which the US Chamber of Commerce alone has spent hundreds of millions of dollars over the past decade targeting judicial races, successfully building pro-business, conservative majorities on benches in state after state.
But here in Washington we elect all our judges, from the Supremes all the way down to our local municipal court… low profile races that, given the restrictions on the candidates (they are actually barred from talking about issues), often turn on name recognition more than any other factor. And to gain name ID, you gotta spend money, mostly in the form of expensive direct mail campaigns.
Take for example the race for King County Superior Court Position 22, a three way contest between Julia Garratt, Holly Hill and Rebeccah Graham. This is one of those rare, easy judicial races for me because Graham is not only an extremely qualified attorney who has presided over thousands of cases as a Superior Court pro tem judge… she is also a close personal friend. That said, I hadn’t intended to write about the race because I don’t feel particularly qualified to judge judges, and I don’t think my personal endorsements hold much sway.
But this race illustrates a deeper problem with the way we elect judges, a problem which deserves a broader dialogue.
Take a look at the “Cash Raised” column in the PDC reports, and it looks like a pretty damn competitive race, with Garratt, Hill and Graham raising $14,370, $14,595 and $11,240 respectively. That’s the amount of money folks like you and I have given to the candidates, but in this race it tells much less than half the story, for while cash contributions represent the sum total of what Graham has raised thus far, Garratt has loaned her campaign an additional $12,600, while Hill has invested a staggering $70,000 in personal funds into her own race.
$70,000! That’s more than twice the total contributions raised by nearly every other candidate running for King County Superior Court, and from what I know about local judicial races, it’s gotta make Hill the hands down favorite. It just blows her opponents out of the water, and you can be sure that this was exactly her intent.
I don’t bring this up as a personal knock against Hill; while she doesn’t come anywhere near the valuable bench experience Graham has accumulated over her six years as a pro tem judge, I’m told Hill is both a good attorney and a good person. But are all our citizens really best served by a judiciary where personal wealth—and the willingness to use it—becomes the most important qualification?
Of course the real solution is to stop electing judges in the first place. I’m about as engaged a voter as you’ll find, and I generally have no idea who to vote for in judicial races. (I usually ask Graham and my other lawyer friends for advice.) But no matter how wise, this state is never going to vote for less Democracy, so the system we have is pretty much the system we’re stuck with.
But what we can do is move toward a system of public financing that would lift the fundraising burden from our judicial candidates (who aren’t even allowed to directly solicit funds in the first place), and remove the distorting role of money from races for offices that I think we all agree should remain scrupulously apolitical.
Unless, of course, you’re a free market ideologue who believes that society is best served when everything—even justice—goes to the highest bidder.
Anybody who doesn’t think money can change justice, and that electing judges, especially to the State Supreme Court, should read John Grisham’s latest book, The Appeal. There is no happy ending in the book.
You can be damn sure the fatcats throwing big bucks at Supreme Court races aren’t doing it with the public interest in mind.
Goldy, public financing of judicial campaigns looks great on paper, but it won’t stop well-heeled interests from spending private money on these races. Why? Because any restrictions you put on campaign spending will be seen as infringing on free speech. And even if you could get courts to accept limits on spending by candidates and their campaigns, you would not be able to shut up independent groups. And what’s the point of public financing if it doesn’t prevent special interests from giving a financial advantage to a judicial candidate they favor?
Roger @3,
That’s true in theory, but when we’re talking about the lower courts, special interest money is rarely the problem. Rather, the advantages given to wealthy self-funders threatens to create a class of judges—a “ruling class” so to speak—separate from the mass of those who come before them.
In the race referenced above, we’ve got two working judges—candidates who have presided over thousands of cases as pro tems—up against a candidate with virtual no experience as a judge, and who has seen very little of the inside of a court room over the past 15 years. And yet it is the latter who has the advantage because she can afford to sink $70K (and likely more) into the race. It is no longer a question of who is best qualified, but rather, who is wealthier.
I just think that’s wrong.
@4 Independent wealth has always been a factor in who gets elected to judgeships. See, e.g., Bobbe Bridge (who married into the Ben Bridge Jewelers family). There are many fine workaday lawyers who will never become judges because they don’t have the personal resources to invest in a judicial race. It’s one thing to spend a few thousand dollars of your own money, but when judicial races begin to cost in six figures, that’s a different situation.
Also, pro tem experience doesn’t guarantee quality, and lack of it doesn’t make a person less qualified. While experience is somewhat relevant, what really matters in a judge is knowledge of the law, reasoning ability, and judicial temperament. Those things are not, generally speaking, products of experience.
The judge our friend Richard Pope ran against had been on the bench for a long time — and had been an abusive judge for all of that time. No experience value there.
What makes a good judge is a good lawyer with judicial qualities. These qualities are what I look for in judicial candidates, and they count for more than judicial experience. Anyone can learn the courtroom procedures relatively quickly.
One type of experience that does matter at the superior court level is exposure to criminal law, because so much of superior court work involves criminal cases. However, we should want some diversity on the superior bench, for example, we need people with family law experience for the family courts. I am speaking here of the substantive fields of practice that a potential judge is familiar with. Sitting on the bench is not the best place for a criminal law novice to learn that practice area.
I agree strongly with Goldy in this one. The entire legal system .. from law school admissions ot appointments of judges to the Supremes, is heavily skewed to the wealthy and the favorites of the wealthy. Almost any court proceeding is likley to depend heavily on who can afford the better attorneys.
OTOH, while I must admit to not having any clever ideas as to the alternatives, this does strike me as the sort of issue that could be exploited by the right or the left in a future campaign. I also think a conflict over one’s right to representation would make abortion rights look like an easy issue.
Roger, you know a lot about this. Does any other cuntry ahve a better answer?
From the Seattle Times. July 17, 2008. First paragraph –
“The Seattle Ethics and Elections Commission found Wednesday that City Councilmember Richard McIver violated the city’s ethics code when he awarded a no-bid contract to a company after vacationing at the Virgin Islands condominium of one of the company’s owners.”
Can someone please point me to Goldy’s post on how the City of Seattle’s no-bid contracts are for sale to some Democratic City Councilmen? I don’t know how to search for things on this blog. Thanks.
I always try to research the Judges via past articles from both papers. I just scan the campaign glossies since they’re obviously just paid advertisements.
I DON’T rely on any recommendations from either fishwrappers’ editorial boards. Too often they produce faulty recommendations, such as in the Port position – not standing by the whistleblower Alec Fisken. Particularly after the P.I. had run its expose of the Port shortly before, then couldn’t be bothered to read their OWN newspaper before making recommendations. Or even, fishwrapper recommends that we all vote for dubya bush (how sound was THAT judgment?).
I also don’t like to merely rely on the Bar Association’s recommendations – like, in the case of Richard Pope’s opponent that you cite in #5. The judge who had a track record of being abusive was probably rated more higher qualified than, say, Richard Pope.
Roger Rabbit, since you know so much more to be looking for in these positions, when it gets closer to election day what would be helpful is if you might give a list of Judges that you find best, with a synopsis as to why you find those candidates better qualified.
Figure that it can’t hurt to ask you. ETA, yeah it usually takes up to a week to fill out my ballot with all my searches, but if I don’t know enough about the candidate, I simply don’t vote that race. Sure don’t do it based on name recognition, but I know many people do sadly.
Goldy,
You repeat the standard big media line: while complaining that there is too much money in judicial races, your first question is “how much have you raised?” As if that is all that matters. I’ve met both of these ladies and both would be terrific judges and their financial contributions should have nothing to do with the choice.
The Olympian made the same argument in my editorial board endorsement interview Tuesday. After pointing to my opppnent’s prodigious $100,000+ campaign fund and my, in comparison, paltry account, Mike Oakland asked “are you viable?”
Your favorite expletive came to mind. Some of us think that money doesn’t simply talk, it screams obscenities.
I’ve set about to win election to the Supreme Court based on ideas — not money. If the media, including bloggers like yourself, would only pay attention to something other than the amount of money in the account, it just might happen.
Vote Bond for Justice on August 19.
@9: There are different types of money – lots of small contributions from many donors points to a strong base, a small amount of donors contributing large amounts of money points to special interests.
re 9: Sometimes smart wins over entrenched power. “Good luck, and Good News!” Ted Baxter
As it stands, the non-partisan requirement is a bit of a sham. The candidates can’t even opine on the Federalist Society. Furthermore, somebody fill me in as to why a smart lawyer would want to spend a big chuck of dough to be a judge making, presumably, less money. That simply does not compute.
How about appointed judges by an independent panel, followed by review and possible reconsideration several years later?
Maybe the panel can be an elective position, a partisan one! But if you can’t take the money out of politics, how ’bout some rules to insure some don’t have such an overabundance of it.
@ 6
Actually, the U.S. is an exception in electing judges. France treats the job as a profession that requires curriculum, practicum, standards and certification.
http://www.nytimes.com/2008/05.....ref=slogin
In the meantime, I’m voting for Rebeccah Graham!
Don’t worry. You can depend on the intelligence of the average voter. Why do you think Republicans work so hard to suppress it?
@6 From my perspective of over 30 years’ experience as a lawyer, I feel the correlation between wealth and admission to law school, and between fee rates and litigation outcomes, is not as strong as you believe.
Any injured person, even the poorest among us, has access to the courts for redress thanks to the contigency-fee trial lawyer system that Republicans want to take away from us under the rubric of “tort reform.”
Do the tort cases that generate the biggest fees attract the best trial lawyers? Sure. But that’s a function of how badly you were injured, not how wealthy you are.
Aside from money, another critical factor in getting elected judge (or justice, at the Supreme Court level) is a good-sounding name! One Charles Johnson, then an unknown storefront lawyer, got elected to the Supreme Court with no judicial experience and virtually no money — because he had a “better” name than his more illustrious opponent. A name virtually identical to a superior court judge in King County.
After that experience, and similar cases where candidates with more Anglo-sounding names triumphed over candidates with more “different” names, I concluded we shouldn’t be electing our judges at all. We need some type of appointive process, more like that of the federal court system.
@6 “Roger, you know a lot about this. Does any other cuntry ahve a better answer?”
Comparative law (i.e., the field of legal study that compares different legal systems) is not one of my strengths, and this would be a complicated question in any event.
I would answer it this way. America traditionally has been the most populist country, and not surprisingly we have traditionally had the most populist legal system.
In the area of criminal law, the separation of investigative, prosecutorial, and judicial functions is very important. Under some systems, two or even all three of those functions may be combined in one office or person. I like our approach better.
In the area of civil law, our adversarial system is often criticized as expensive, lengthy, unnecessarily combative, and prone to unfair results. Alternatives include no-fault insurance, mediation and arbitration, and administrative adjudication; our system uses all of those approaches selectively.
We inherited the jury system from the English, and I wouldn’t tinker with that, although I have to say that I wouldn’t want to entrust my personal fate to a typical American jury. No one else wants to, either, which is why so many cases (both criminal and civil) end with negotiated settlements. But given a choice between a jury, a king, or a dictator, I’ll take the jury every time.
@7 Seattle has Democratic city council members? I didn’t know that! I thought they were non-partisan. You know, like our Republican prosecutor wants to be. Apparently he figures any label is better than “GOP.”
@ 9. Michael J. Bond
I checked out your website
http://www.bondforjustice.com/
Very interesting Youtube. Nicely done, even if a bit long for some people with short attention spans. Good luck with your campaign!
@8 “Roger Rabbit, since you know so much more to be looking for in these positions, when it gets closer to election day what would be helpful is if you might give a list of Judges that you find best, with a synopsis as to why you find those candidates better qualified.”
Well, I might if you remind me, but don’t expect me to remember to. And I’ll warn you right now that I tend to rely on the bar ratings, because I hardly ever know the candidates personally. I think the bar ratings are reliable for this reason. They reflect the cumulative opinions of a fairly large number of lawyers who regularly practice in the courts in question, and none of them want a lousy judge on the bench, because that makes their job ever so much more difficult and frustrating, so you can safely feel that the bar ratings are not a buddy system or good old boy system. Trial lawyers on both sides — plaintiff and defense, or prosecution and defense — want trials to go smoothly, want correct procedural rulings, and want predictable judges. So, when they vote in the ratings polls, they give their honest opinion. Besides, the ballots are secret so your buddy doesn’t know you dissed him.
Still waiting for someone to help me to find that post of Goldy’s I wrote about in #7.
Because I just know Goldy wouldn’t turn the other way and remain silent when Democrats sell votes, or no-bid contracts.
@9 I don’t know you, Michael, so tell me why I should vote Mary Fairhurst off the court to make room for you. Warning: That’s going to be a tough sell. Fairhurst is about as proletarian as judicial candidates get.
@12 “How about appointed judges by an independent panel, followed by review and possible reconsideration several years later?”
That system is used by some states back where Easterners live. This is the West, son. We spilled blood to win our populist ways, and we’re not gonna give ’em up without a fight no how.
@13 See #15.
@14 Roger
I respect your opinion but let me bet you that the great bulk of the folks availing themselves of the tort system come from the wealthy.
As a consumer of legal services, I have more than once gone through the phase of being told by my own attorney that my opponent has too many resources to be sued. In one case, my wife and I decided to commit to put our house on the line. We did eventually win, after going through a very large amount of money.
The issue here, however, is the judge-world. As Goldy says, few if any of use know enough about the technical business of judgment to evaluate a judge. As a result, all other issues being equal, the contest will always go to she with the most moolah or most friends with moolah.
Moreover, as I understand the matter, judges are NOT paid very well (at least by the standards of the besuited JD crowd). So, doesn’t this mean that those who choose to be judges must come form the better off classes?
BTW, the same issues arise in medicine. We have a huge problem with representation of people from the lower classes willing to work in academe.
@15 Great Point!
I think Richard should change his last name to Obama and run for judge!
Roger
If you think this system is so good, I have a suggestion for a slight change …..
We have an independent panel rank would be judges. The rankings of the top four candidates would be open but ratings of all other acceptable candidates would remain confidential. The election, however, would be open to all.
The election could follow the top twop model.
Stephen Schwartz @ 26
“We have an independent panel rank would be judges. The rankings of the top four candidates would be open but ratings of all other acceptable candidates would remain confidential. The election, however, would be open to all.”
So does that mean that I would need to find a judicial race that has at least five candidates running?
@ 19. Roger Rabbit
Thanks! Don’t worry, I will remember to ask you later for your synopsis and I have no doubt but what Richard Pope will add his expertise, should make for a lively discussion. Not saying I will just follow along, but it will help to better evaluate the choices I think best, or wish to make changes.
Like I said, I don’t like to merely rely on the Bar Association’s recommendations. I certainly do take them into account, but don’t take them as “gospel”. Your comments, though, mean that I will give the Bar Assn ratings a heavier weighting than I have in the past. Thx!
@27 Richard Obama nee Pope?
I picked 4 as a maximum number to be rated relative to one another.
@28 I also use bar ratings, but wonder if this is a good idea given that in large part the Judges are referees?
If we had an independent body, it would, presumably, include the bar. It might also,
however, include representatives of the govmnt and police. Maybe Unoversity Law school faciulty too?
30. Stephen Schwartz
I don’t there’s such an earthly thing as a truly “independent body”. No matter who is making a selection, they’ve still got friends, personal prejudices, political motivations, etc, etc. I just don’t think it’s remotely possible myself.
@31 ,,,
Sure.
The question is what are the alternatives?
Or is this really a non problem? I do not hear a lot of complaints about the judges.
Roger @21,
If by “proletarian” you mean interested in the problems of ordinary folks, then Fairhurst is not proletarian, at all. She spent her 16 years of lawyer work before she was first elected working in the Attorney General’s office defending the government from its citizens. And if there is any common thread to her decisions, it would have to be “the government wins”.
I address some of her anti-proletarian approaches in a piece on social justice that can be accessed on my website http://www.bondforjustice.com.
I can say much more if you want to talk about it.
@22. Roger Rabbit spews:
@12 “How about appointed judges …
That system is used by some states back where Easterners live. This is the West, son. We spilled blood to win our populist ways, and we’re not gonna give ‘em up without a fight no how.
a. Um, 38 states use some form of the “Missouri Nonpartisan Court System” that 12 describes. yes, the bar has almost always fought the change.
b. fricknfrack and steve look to voter guides. most voters don’t, as per the charles johnson example. most research shows (a) ballot fatigue (no vote cast) or choosing based on name (‘sounds white / protestant’)
c. Deference to Goldy #3 on cash in lower courts but in the Supreme Courts, most campaign dollars come from business. Yes, judicial elections are poor policy
http://lawprofessors.typepad.c.....ak-on.html
Term limits would eliminate the problem of sitting judges abusing their power in exchange for massive payoffs down the road at reelection time.
“. . . bar ratings are reliable . . . They reflect the cumulative opinions of a fairly large number of lawyers who regularly practice in the courts in question, and none of them want a lousy judge on the bench, because that makes their job ever so much more difficult and frustrating, so you can safely feel that the bar ratings are not a buddy system or good old boy system.”
For the lower court positions, maybe. Not for appellate courts though.
First, the mandatory bar association (WSBA) doesn’t do that kind of polling about candidates. Second, the voluntary bar associations are self-selecting groups that tend to be either single-issue-focused or dominated by the big firms.
Perhaps most importantly, outside of criminal matters only a VERY few law firms appear regularly before appellate courts. Those are the big firms. It is very clubby in appellate courts. The appellate bench knows exactly which entities these “usual suspect” law firms represent.
When a voluntary bar ass’n gives an “exceptional” rating it is not because the KCBA (as an example) believes the appellate judge is unbiased, it is because those regularly before that judge like the outcomes that judge provides.
During this campaign season, it appears that not much has changed… money talks, decisions that have been written have been forgotten. Unfortunately, few people truly seem interested in holding the current Supreme Court Judges accountable for some very poorly reasoned decisions that will have negative long term ramifications for the common man.
Vote for Change August 19th