Fury Bailey - Personal Injury - Wrongful Death Attorneys

THE CANDIDATES THAT NOBODY KNOWS

By William S. Bailey

Fury Bailey

710 – 10 th Avenue East

Seattle , WA 98102

(206) 726-6600

billb@furybailey.com

Shortly after becoming a lawyer and moving to Washington in 1976, I made an alarming discovery - even intelligent, conscientious and thoughtful citizens have no idea who to vote for in judicial elections. Neighbors, in asking my advice on this subject, have invariably confessed that they do not bother to vote for judges at all or else do so on the basis of uninformed guesses. In 1996, the Walsh Commission made a statewide investigation of this problem and concluded that:

In any given election in Washington State, as many as 50 percent of those who cast votes for other candidates choose not to vote for judicial candidates on the same ballot.

The Commission's final report quoted one speaker at a town hall meeting who said of judicial candidates, “I have absolutely no idea who any of them are. I am embarrassed to say but I couldn't tell you a single name.”

This fact has not been lost on a small group of underemployed, opportunistic lawyers in recent years, who have emerged as “stealth candidates” in judicial elections, hoping that their name will sound appealing or at least vaguely familiar enough to give them an advantage. For example, in a reversal of years of “Irish need not apply” discrimination in the 19 th and 20 th centuries, judicial candidates with Irish surnames now are certain to gather a number of votes on that basis alone. (Everyone wants to be Irish these days, particularly on St. Patrick's Day.)

For well-qualified incumbent judges who are challenged by such stealth candidates at election, life becomes a nightmare. A longtime friend of mine on the bench once was challenged by such an attorney of marginal qualifications. The reason? The challenger thought that this judge's name sounded “funny,” making him vulnerable to uninformed voters (“funny” name aside, this particular judge was rated as one of the very top jurists on the 51 member King County Superior Court bench). My friend took this challenge very seriously, had no private life over the seven months worth of campaigning and spent nearly $50,000 of his own money. (Judicial races attract very few contributors because there are no paybacks.) He received the endorsements of every civic group and all of the newspapers. However, he only won by a margin of 10 percent against an opponent who was not qualified and did not even bother to campaign. He was incredulous that it was even this close. I consoled him with, “There is no sense to be made out of these or any other judicial elections. Most citizens, conscientious or otherwise, go in and guess when it comes to judges.”

It has always been the case in Washington that judges at all levels are elected by the voters. The Governor can appoint judges to fill vacancies on the Washington Supreme Court, Court of Appeals and Superior Courts of every county, but any judge appointed by the Governor must face the voters in the next general election. This is in direct contrast to our federal court system, in which judges are all appointed for life and cannot be removed from office other than for extreme reasons such as moral turpitude.

Many other state courts use some variation of the so-called Missouri plan. Under this system, a judicial commission screens and appoints judges. These judges are retained automatically unless they get a “no confidence” vote that falls below a certain level. Despite efforts over the years to change Washington to some form of the Missouri plan, enough elected officials and voters in Washington continue to cling tenaciously to our traditional contested elections – even if such votes are ordinarily cast in almost total ignorance.

Why is it so hard for use to choose among judicial candidates? One significant reason is that judges cannot identify themselves by party label. While this was done for the ostensibly noble purpose of trying to take politics out of the judiciary, it effectively deprives the voters of a very helpful piece of information that is used in evaluating nearly every other type of candidate for public office.

Historically, few judicial positions were ever challenged in Washington . When I first became a lawyer 25 years ago, all King County Superior Court judges were male, over 60 years of age and God-like. You did not even raise your voice in their courtrooms, let alone file an election challenge against them. As the 1980s went on, women, minorities and younger lawyers were appointed to the superior court bench in greater numbers. However, along with this needed diversity came a declining tendency to by the bar to defer to sitting judges in election contests. Suddenly lawyers were challenging incumbents to a degree that their counterparts in prior years never would have.

Judicial races enjoy very low visibility in most circumstances. Other than celebrated cases such as the O.J. Simpson trial where Judge Ito was on television daily (and filed miserably in his duty to control the proceedings) judges are seldom in the public eye. Candidates for judicial office are prohibited from having a blatantly political agenda that can be used to capture the public's attention. For example, judges cannot promise to enact laws to correct specific problems with public institutions or state that they will declare a particular law unconstitutional if they are elected. The most a judicial candidate can offer the voters is vague slogans that they are “strict constructionists” or “tough on crime.” But what do these buzzwords really mean?

Most voters have no idea what qualities make a good judge. Other than the occasional appearance in traffic court, the average citizen has had very little contact with the judicial system. While TV celebrity “judges” such as Judge Wapner and Judge Judy come into many homes and receive high approval ratings from the TV viewing public, they are entertainers who do not offer a balanced and complete role model that translates into effective judicial performance in real life.

So what is a responsible voter to do in trying to cast an intelligent ballot on judicial candidates? Unfortunately, radio and television do not provide much help. Newspapers are about the only source of general information on judicial candidates. While the newspaper articles themselves often do not give enough information to be able to cast a ballot for a particular judicial candidate, editorial board recommendations of judicial candidates are based on thorough interviews and background research by the newspaper staff. Normally voters are well served by these, to the point that it makes sense to clip them out and take them to the polls. Over the years, I have found these editorial board evaluations to be generally sound and certainly better than nothing.

In addition, various bar association groups such as the King County Bar Association, Washington Women Lawyers, and the Loren Miller Bar Association conduct evaluations of all judicial candidates. Candidates are required to fill out a thorough, lengthy questionnaire and complete an interview by a panel. Multiple personal references are required and vigorously checked. (It is telling that many marginal “stealth candidates” refuse to participate in this procedure.) The voter can generally rely on the ratings given by these lawyer groups, in that they represent hundreds of hours of work by knowledgeable volunteer attorneys who want nothing more than to uphold the integrity of the judicial system. These groups are not infallible, but provide another informed basis for voting in judicial races, in addition to the editorial boards.

Local candidate forums presented by the League of Women Voters, the Municipal League, Chambers of Commerce, and other service group allow the voters to make judgments on judicial candidates after seeing and hearing them in person. The presence or absence of thoughtfulness, intelligence, and personality in the judicial candidates has a way of coming out in these unrehearsed candidate forums.

Probably no more than 25 percent of licensed attorneys have ever appeared in court. However, if you know any lawyers, at least ask their opinion about judicial candidates. There is a reasonable chance that a lawyer will know more about these candidates than other sources. For example, as trial attorneys who appear regularly in court, my firm has a great deal of information about judges. We send out an election letter to friends and clients, telling them about judicial candidates and offering our opinion on who are the best qualified. People are very grateful for this information and assistance.

Candidate advertisements and organizational endorsements are probably the least reliable sources of information. This also applies to the Voters Pamphlet. The average voter is under the mistaken impression that the Voters Pamphlet is an objective, official document. In fact, each biographical write-up is by the candidate himself or herself. As such, it may be sheer puffery. While many business, political and labor organizations endorse candidates, the degree of thoughtfulness that goes into these evaluations varies widely.

There is one infallible principle that all voters can use effectively – do not vote for a judicial candidate who has declined to be rated or interviewed by the various bar organizations or the Municipal League. This is a dead giveaway for identifying a “stealth” candidate who is not qualified for the office, trying to sneak by and trade off of voter ignorance.

A judge must represent the very best a legal profession has to offer – ethics, temperament, wisdom, analytical ability and a sense of fairness. One unqualified judge on the bench can do far more damage to our rights and freedom than a run of the mill politician doing an incompetent job. Despite what Thomas Jefferson said in the preamble to the Declaration of Independence, not all lawyers are created equal as far as their skills and abilities go. If the legal system is to continue to be worthy of the public's trust and respect, we need well qualified, capable judges on the bench. Make sure that the votes you cast for judge are just as informed as for the other offices on the ballot. The stakes are too high for anything less.

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