Electing an Independent Judiciary

By Justice Richard B. Sanders

July 6, 2006

Popular election of our judiciary promotes judicial independence and blows a breath of fresh air across a state where 70 percent of our judges began their careers by political appointment. Yet challenges to judicial independence from the other branches of government are not to be taken lightly; nor are judicial campaigns as robust and effective as they could be absent campaign contribution caps and arbitrary rules imposed by Canon 7 of the Code of Judicial Conduct.

I submit “judicial independence” was well understood by the Founders but too often confused by our contemporaries.  For example Governor Christine Gregoire, in her Law Day speech to the Trial Lawyers, opined large private contributions to judicial campaigns are a threat to judicial independence. But not to worry Governor, no private person or group can possibly threaten judicial independence because the independence about which we speak is independence from the executive and legislative branches of government—not independence from the private sector.

Our founding generation were students of Baron de Montesquieu’s Spirit of the Laws. That 18th Century treatise articulated the threat to liberty posed by government and attempted to deal with it by separating the powers of government into competing branches. Montesquieu posited, “There is no liberty, if the judiciary power be not separated from the legislative and executive. Were it joined with the legislative, the life and the liberty of the subject would be exposed to arbitrary control…” The same thought was not lost on the signers of the Declaration of Independence who faulted King George III for making judges dependent on his “Will alone.”

            Later the Federalist Papers emphasized the importance and role of an independent judiciary.  Madison wrote, “The accumulation of all powers legislative, executive and judiciary in the same hands…may justly be pronounced the very definition of tyranny.” The Federalist Papers cast the judiciary as the guardians of our Constitution so it would not be rendered a “mere demarcation on parchment.” And James Madison’s eloquent plea to adopt a Bill of Rights relied upon an independent and courageous judiciary to “form an impenetrable bulwark against every assumption of power in the legislative or executive” against the rights of the people thus secured.

            Although the federal Founders ultimately opted for an appointed judiciary, both Alexander Hamilton and Benjamin Franklin argued for one elected by the people. And that was the path chosen by our state’s founding generation.

            Because an elected judiciary owes its very existence to all the people and not to the executive or legislative branch, I submit such a judiciary is more institutionally willing to stand up for the rights of the people.

Yet we must still be vigilant to promote that independence by shining a bright light on executive and legislative action concerning the judiciary as well as judicial acquiescence to legislative or executive incursions into the judicial power.

The executive (and I here include the Attorney General and local executive branches) still has the power to make much mischief. Not satisfied with shaping the judiciary through the awesome power of appointment, efforts to undermine independent jurists in election campaigns—and in other ways as well—should not be lightly regarded. Nor should the power of the executive branch be abused by attempting to bring public pressure to bear on the judiciary to decide a case in a particular fashion—as was the case when a letter writing campaign was facilitated by the Locke administration to reconsider the Andress decision.  (It didn’t work, to the credit of our court.)

The legislative branch is also prone to trench upon the judicial power to do what judges have traditionally done. Examples include legislating rules of evidence, limiting traditional judicial discretion in sentencing, attempting to influence whether a bill may be subject to referendum by appending a so-called “emergency clause,” or claiming deference to legislative declarations of public use contrary to Wash. Const. art I, § 16 which provides the question must be determined “without regard to any legislative assertion that the use is public.”

But for the legislature to effectively undermine the independence of the judiciary it needs an ally: the judiciary itself. Unfortunately in many instances the judiciary at its highest level sees its role as deferring to the legislative prerogative—ironically in the name of separation of powers—the very opposite of the proper role of an independent judiciary.

            Gerry Spence in his book With Justice for None comments that what we need is more randomness in our judiciary—judges should come from many different backgrounds. Ironically, the principal rap against an elected judiciary is it does exactly that by adding an element of unpredictability. But I agree with Spence, we should not all be cut from the same cloth to best serve our purpose.

And finally, if we are committed to electing our judiciary, let’s get serious about improving the process.  Canon 7 of our Code of Judicial Conduct was principally drafted by the American Bar Association—which is opposed to judicial elections in the first place. And it shows. Probably an unconstitutional infringement on free speech in large part, the canon sets forth arcane rules for campaigning which are unrealistic at best. It also prohibits candidates from telling us how they intend to vote on future cases. While superficially that may seem like a good idea, it really misses the point.  In the end it is not so important what a candidate says, but what is telling is how a candidate thinks.  If a candidate has already made up his mind about future cases (i.e., before hearing the facts or studying the law), we should know about it and vote for the other guy.  Repeal of Canon 7 would be a step in the right direction.

And I’d repeal the contribution caps while we’re at it. Candidates need money to put on an effective campaign.  That’s what campaigning is all about—getting the message out. If someone wants to donate a large sum, let it be to the candidate who must stand behind the truth of his campaign—not to a newly minted Political Action Committee which has no responsibility the tell the truth by independent expenditure.

            An independent judiciary is too important to leave to the politicians.