A Conservative Viewpoint on the Judiciary, Legislature, and Trial Lawyers

Friday, November 10, 2000

Speech to the National Association of Trial Lawyers Executives

Westin Hotel

Seattle, Washington

By the Hon. Richard B. Sanders

Justice, Washington Supreme Court

My assigned topic is the "conservative viewpoint on the respective roles of the legislature and judiciary on protecting individual rights." My thesis is this: conservatives and trial lawyers have much in common although both groups work very hard to pretend they don’t.

Before my election to the Washington Supreme Court in 1995 I led a double life: I was active in conservative Republican politics and I was also a trial lawyer.

As a political conservative, Barry Goldwater was my hero. I was philosophically dedicated to individual freedom, limited government, and the protection of individual rights.

As a trial lawyer I was an advocate for the civil justice system. I was a member of the Washington State Trial Lawyers Association, attended its trial lawyer seminars, conventions, and business meetings.

When I attended Republican meetings, I had to introduce myself like I was at an AA meeting, "Hello, I’m Richard and I’m a trial lawyer." And when I went to trial lawyer meetings, I confessed my political sins in a similar fashion.

But I never saw a contradiction in this double life. Rather, I saw the civil justice system as the embodiment of my ideals of individual rights and personal freedom. Sometimes, however, this took some explaining to my conservative friends.

I would tell them of all the institutions of government, only one—the judicial system—is dedicated to the individual.

In court every man is not only the equal of his neighbor, but also the equal of the largest corporation, and even the government itself. The role of the courts—and the lawyers who are absolutely necessary for their proper function—is simply to protect our legal rights—including the rights of conservatives, Republicans, and businesses.

But I would warn them protection of our rights is not for free. There is a cost. That cost is making sure that the legal rights of each of our fellow citizens is also protected, without compromise, without exception. Like an alcoholic who takes that first drink, when we start compromising the legal rights of our "less worthy" neighbors, there may be no end until finally our own rights are swept away as well.

I would also remind them what they, as conservatives, already knew: in America each individual is endowed with certain rights that nobody, not even the government, can take away. And, by golly, we trial lawyers are there to fight for those rights as well.

Sometimes a friend would point to a large verdict against a business, as if this demonstrates some problem with the system. Let’s think about this. Don’t we conservatives believe that with freedom necessarily comes individual responsibility and accountability? If someone violates your rights shouldn’t they be held accountable? And isn’t it better for business that it be held responsible on those few occasions that it violates individual legal rights than be smothered with a myriad of governmental rules and regulations which destroy freedom, and profitability, even when no one’s existing legal rights are at issue?

And what about those awards of compensatory damages? When the government takes our house to build a freeway through it we conservatives expect to be compensated—and compensated in full, not just in part. So what’s the difference when someone costs you an arm or a leg by running a red light? Isn’t an award of compensation in that instance just as much to compensate for your loss of property as when you lose your house or wreck your car? We conservatives agree with James Madison and John Locke that our first right of property is in ourselves, and includes "the safety and liberty of [our] person." When someone takes it from us in violation of our legal rights compensation for what we have lost is the least that can be expected. And if we are robbed of that which most of us take for granted, a healthy pain-free life, the same principle applies, and probably more so. And if our suffering is worth $1,000,000, we want $1,000,000 in compensation, not $500,000 or some lesser amount big government decides we should have. It is simply unjust to shield the wrongdoer from the consequences of his misconduct at our expense. Devil get behind me.

Of course sometimes, it is true, courts make mistakes. But those mistakes are only little ones because they harm only those people who are actual parties to the suit—not all of society. In contrast when the legislature passes a bad law, we all suffer. When the courts screw up we can appeal; however, there is no appeal from the legislature.

The courts are ideal for conservatives in another way as well—they are not there to dictate social policy or promote a radical agenda. Their role is only to protect the legal rights of those in the courtroom that day.

But when I went to trial lawyer meetings I was also put to my proof. Why is it, I would ask, that we dilute our civil justice message by promoting social legislation which has nothing to do with our profession? In one such meeting I moved that our lobbyist—the moderator of this panel as a matter of fact—be horsewhipped for promoting an increase in the minimum wage, something which I thought had nothing to do with our role as trial lawyers. Well, after ample opportunity to fully explain my reasoning, the motion was defeated 405 to 1—I had even turned off my second, it seemed. Such is my power of persuasion, a skill I have brought with me to the Supreme Court where I now hold the record for the number of dissenting opinions.

So if the civil justice system is the embodiment of individual rights, what about the legislature?

Unlike the courts, the legislature is an exercise in one size fits all. Its statutes apply across the board without regard to individual differences or situations. For example, mandatory sentencing laws may fit broad categories of crime but can never fit the individual criminal—only the courts can do that.

But the legislature can and does have a role to play in the protection of individual rights. After all the whole purpose of government, according to the Declaration of Independence and our state constitution, is to "secure" our rights.

The legislature can make sure the courts have adequate resources to do their job—enough judges, courtrooms, etc. And the legislature can provide financial assistance to the needy so that they can access the judicial system in a meaningful way—which means help them get a lawyer.

But beyond that the legislature can facilitate our judicial system in other ways as well. For example in our last legislative session my two distinguished copanelists, Democrat State Senator Adam Kline and Republican State Senator Pam Roach, cosponsored the Civil Rights Act of 2000 which would have provided individuals a civil cause of action for violation of their state constitutional rights, with an award of their reasonable attorney fees on top of that if they won. After all, government lawyers always get paid to justify violation of our rights, isn’t it time the government pays the freight for vindicating them as well?

So, in summary, the protection of individual rights is a game we all can play: conservatives, trial lawyers, judiciary, and legislature. But protection of our legal rights comes with a price. That price is making sure everyone else’s rights are protected as well. A bargain at twice the price!