Judge who?

2010-07-10T23:40:00Z 2014-12-09T19:07:45Z Judge who?By Tony Lystra / The Daily News Longview Daily News
July 10, 2010 11:40 pm  • 

Pity the voter tasked with choosing a judge.

Judicial candidates are reluctant to talk about how they would address specific issues from the bench, such as privacy rights or gun control. A state code of conduct for judicial candidates bars them from committing themselves to a certain position on any one issue.

That means voters may not have many hard facts to support their decision when they sit down next month to choose either Cowlitz Superior Court Judge Jill Johanson or Kelso attorney Joseph Daggy for the state Court of Appeals bench.

"It's a tough thing to ask the voters to do," said William Anderson, a University of Washington School of Law professor who published a Law Review article this spring titled "Judicial Selection in Washington — Taking Elections Seriously."

"They have to vote on name recognition. They have to vote on how much money is spent on the campaign. They have to vote on who looks like a judge. That's totally irrelevant to what the campaign should be about."

The difficulty of the process isn't limited to the local judiciary. U.S. Supreme Court nominees have notoriously dodged questions about specific legal questions for decades, so much so that President Obama's current nominee, Elena Kagan, referred to the process 15 years ago as "vacuous."

So when voters return their primary ballots in August, what criteria should they use to decide which candidate is best?

Paul Fjelstad, a Silverdale, Wash., attorney who runs the website votingforjudges.org, suggests they consider a candidate's integrity, fairness and "judicial demeanor."

"Those are the things you want in a judge. Finding out how you get them can be difficult," said Fjelstad, whose site compiles Washington judicial candidate's public statements and campaign spending as well as media accounts of their campaigns.

Easier to determine is a candidate's experience. Appellate court judges should have argued cases before an appellate court or Supreme Court, Fjelstad said. Experience at the trial level is also important, he said, because appeals court judges should know those mechanics and procedures.

Anderson said voters should consider whether judges have the proper "technical skills" as well as "how insightful they are, how impartial they are."

Conventional political questions, such as party affiliation or specific hot-button issues such as gun control, shouldn't be taken into account as they would be in a race involving the executive or legislative branches, Anderson said. Judges, he said, should be regarded as skilled practitioners rather than policy makers.

"I like to think of judges like selecting a brain surgeon," he said. Anderson said nobody cares if a particular political party or politician has endorsed their brain surgeon. Nobody cares what their brain surgeon thinks about "gun rights or abortion."

The decision can be so vexing for voters that some suggest a different system altogether for selecting judges.

Anderson said he favors a system by which judicial candidates would be reviewed by a citizens commission, which would interview the candidates and their colleagues, rate them based on specific criteria, then recommend a list of candidates to the governor, who would appoint a new judge. Then, at the end of a judge's term, voters would have a chance to decide only whether they want to keep the judge on the bench. If they boot the judge out, the process would start over again.

Several states, including Missouri and California, use such a system, known as the "Missouri Plan." A similar system is also favored by former U.S. Supreme Court Justice Sandra Day O'Connor.

Already, Anderson said in his Law Review article, judges are known to retire mid-term, which allows the governor or another elected body to appoint a judge, potentially manipulating the judiciary for political gain. Implementing an alternative system by which a citizens commission could independently and transparently choose a list of judges for appointment could result in a less politicized and better-qualified judiciary, he said.

But not everyone agrees the system for picking judges should be reformed.

"I am adamantly opposed to that," said former U.S. Senator and Washington Attorney General Slade Gorton, who has endorsed Daggy for the appellate court.

"An elected judiciary is much better," Gorton said, because it ensures that appellate court judges, who by the nature of their jobs affect a wide array of policy, are accountable to voters.

Gorton, a Republican, also said judicial candidates should be more free to discuss their political beliefs and affiliations.

"From my perspective, I'd allow them to say much more. I think the restrictions to what they can talk about are artificial," Gorton said. "Particularly when we have judges running for election, I think they ought to say what kind of stances they'll take on challenges that come up."

Copyright 2015 Longview Daily News. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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