In her retirement, Justice Sandra Day O’Conner has made it her mission to spot light problems with the election of judges.  Several scandals involving state supreme court justices and John Grisham’s book, The Appeal, have further illuminated the issue.  About half the states appoint judges and about half elect judges; generally speaking judges in eastern states are appointed; the more westerly states which achieved statehood later and during a more populous time elect judges.  I am asked about judicial selection every time I speak publicly.  My short answer is that some judges should be appointed and some elected.  To explain my short answer, let me first frame the issue as I see it and discuss the pros and cons.

The issue, as I see it, is the independence of the judiciary.  The brilliance of our constitution is in its checks and balances.  The founders designed the legislative branch of government to represent the majority.  And while they built in some checks, I think the founders knew the majority would have its way with the executive branch.  Remember the founders were fearful of the “tyranny” of the majority.  So the delegates who met in Philadelphia in 1787 created the judicial branch with the unique function of protecting the individual from the “oppression” of the majority.  Alexis de Tocqueville said in Democracy in America, “[t]he power vested in the American courts of justice, of pronouncing a statute to be unconstitutional, forms one of the most powerful barriers which has ever been devised against the tyranny of political assemblies.” We, the judiciary, have a constitutional obligation to protect individuals and individual rights.  In fact, constitutionally, we do our most important work when we make decisions which are very unpopular with the majority.  I think we judges reach our highest calling when we protect you, an individual, from your own government, even when the majority supports the government.

Now, if you accept my premise that one of the most important functions of judges is to protect the minority from the whims of the majority, how can we judges do that if we are also swept into and out of office on the whims of the majority?  A judge who stands up for the rights of an individual against the will of the majority on a hot issue is at risk of being run out of office in the next election.

I must hasten to say that in my 40 years in the law, the judges of Washington State have consistently done the courageous thing and are not swayed by fear of being un-elected.  For example, we would all like $35 auto license tabs.  It was a very popular initiative but the Washington Supreme Court did not hesitate to strike it down because it violated at least one and probably more provisions of our state constitution.

Unfortunately, not all states have been so fortunate.  For example, the Illinois Supreme Court was faced with an appeal from a $1 billion judgment against State Farm Insurance Company.  State Farm and other business interests spent considerable sums to unseat one justice considered unfriendly.  The Illinois Trial Lawyers responded in defense of the judge and a total of more than $9 million was spent on the election with the sitting justice unseated.  Newly elected Justice Lloyd Karmeier refused to recuse from the State Farm case and cast the deciding vote to reverse the damage award against State Farm.  For more on this case, see Deborah Goldberg, James Sample & David Pozen, The Best Defense: Why Elected Courts Should Lead Recusal Reform, 46 Washburn L.J. 503, 509-12 (2007).

Another example comes from West Virginia, where the state supreme court was to review a $50 million judgment against A.T. Massey Coal Company, Inc.  Massey successfully spent $3.5 million to unseat a perceived unfavorable chief justice of the West Virginia Supreme Court.  Newly elected Justice Benjamin, who had been supported by Massey refused to recuse and cast the deciding vote to overturn the judgment against Massey.  In Caperton v. A.T. Massey Coal Co., 556 U.S. ___, 129 S. Ct. 2252 (2009), the U.S. Supreme Court reversed, holding that the probability of bias was too high to be constitutionally acceptable.

It turns out not to be too difficult to turn out a perceived unfavorable judge.  The very successful game plan is to accuse the judge of being soft on crime and publicize the terrible deeds of criminals whose convictions have been reversed by the judge.  The political ads don’t mention that the reversal almost always simply means that the case is remanded back for retrial where the accused is almost always convicted again. We are all very vulnerable to this type of attack.  As appellate judges, we don’t determine guilt or innocence; we review to make sure the trial below was fair.  I remember the case of a man who had raped an 8-year-old child.  I was disgusted by the facts, but the trial judge had admitted a coerced confession.  We don’t allow coerced confessions; the rule protects the innocent.  Even though I was disgusted, I was willing to reverse and remand for a new trial; if the State couldn’t convict him without using a coerced confession then maybe he should not be convicted.

Although the election process threatens judicial independence, alternative methods of selecting judges are not without problems.  Federal judges are appointed for life by the President of the United States with the advice and consent of the Senate.  The process is hardly a shining example of impartiality.  But I think the federal selection process works.  Remember, I said that the brilliance of the constitution is in its checks and balances.  A conservative president is going to appoint conservative judges and a liberal president is going to appoint liberal judges and in the long run they should balance out; the conservatives provide a check on the liberals and vice-versa.  And all federal judges I have worked with or appeared before were certainly qualified.

Federal judges are also appointed for life thus they can enforce the law and protect rights without fear of public or political consequences.  But I have a concern about appointing judges, at least trial judges, for life.  In Washington State, we have an outstanding federal bench today; but in the past we have had some pretty cranky and often rude federal judges.  As a lawyer, there were a few I did not like appearing before and did not relish subjecting my clients to.  I think everyone should be treated with courtesy, dignity, and respect particularly in a court of law.  Some judges appointed for life have become tyrants and do not treat lawyers, parties, or jurors with respect.  On the other hand, it was my experience that state court judges faced with periodic elections see every lawyer, party, and witness as a future potential vote and almost always treated all with respect.

Most states that appoint judges use a commission or committee comprised mostly of lawyers who screen judicial applicants and prepare a list of those qualified from whom the governor appoints.  Many also have retention elections where judges run for reelection unopposed and the electorate is asked only to vote whether or not to retain the judge.  Incumbent judges rarely lose retention elections.  Peer review has great merit.  We tend to select doctors based upon their bedside manner; but wouldn’t a better test be whether fellow doctors were willing to refer their patients to the doctor.  Just because a lawyer is smart and articulate doesn’t mean she has good analytical ability, high ethical standards, or a judicial temperament.  But other lawyers know the good ones from the bad and have every incentive to see that only the best become judges. State and local bar associations do evaluate judicial candidates, and I think they do a reliably good job.  The process where a blue ribbon panel or commission creates a list from which appointments may be made has been subject to one criticism.  In the past, such blue ribbon panels have been perceived as a good old boy network; clubbish and difficult for women and minorities to break into.

So after much thought, I have decided that while no system of selection of judges is perfect, I would appoint appellate judges because they are the ones who have ultimate responsibility to interpret the law and it is they whose independence is most important.  I would use a commission representing diversified interests to evaluate and approve a list of judicial candidates who may be appointed.  I would have appellate judges stand for retention elections.  But I would elect trial judges because they are bound to follow the law as interpreted by the appellate judges, and they are the ones who most interact with the public.   Elected judges are more likely to treat the public with dignity and respect.  Finally, I think that voters are more likely to know who are the good judges and the bad judges in their communities.  Appointing appellate and electing trial judges is a good compromise and a blend of the two systems.

Although interesting, this discussion is likely academic as I think it highly unlikely that the people of Washington State are ever going to relinquish their constitutional right to elect judges.