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Court Disorder 

Are we really smart enough to elect our own judges?

If you remember anything from the 2009 election for municipal court judge in Spokane, it will be that Tracy Staab is a carpetbagger. Or at least that she’s accused as such.

The contest between Bryan Whitaker and Staab (a sitting judge) — which has played out in the media and at candidate forums — has dealt with credentials and judicial temperament, yes, but it’s also been about Staab’s address, which is three miles outside of city limits. This, Whitaker says, makes her unfit to hear cases in the city’s fledgling court (despite the fact that state law allows it).

But then, it’s a judicial election. What else are we supposed to talk about?

“I get asked by my family members, ‘What do you think about judge X, Y and Z?’ because they don’t know anything about them,” says Gonzaga law professor Mark DeForrest. “This is one of the big problems we have in our system: Oftentimes, people are not well informed about the judicial candidates.”

There are several reasons for that, DeForrest says. The first is that it’s hard to know what judges stand for, without partisan labels or even pet issues.     “The courts in our system are reactive institutions,” DeForrest points out. “They don’t go out looking for problems. So even when they make big decisions in our society, they don’t do so in the same way legislators do. A candidate for the legislature can say, ‘If you elect me, I’m gonna work on that problem.’ A judge can’t really say that. They can say, ‘I’m gonna do the best job on the cases that come to me.’ That’s not really a barn-burner of a campaign speech.”

DeForrest also underscores how the judiciary — and the matters they attend to — are over the head of the average voter.

“Anybody can run for president. We’ve had a peanut farmer. We’ve had an actor. And the same thing with legislators,” he says. “But when you look at the court system, you got lawyers. And we want our judges to be lawyers. We want them to be people who are competent and skilled in the law. [But they’re] a specialized subset, and most ordinary people don’t know a lot about the law. That’s why you have lawyers — to take care of it.”

Bruce Gore, a former attorney and, currently, a political theory teacher at the Oaks Christian Academy in Spokane Valley, says there are some fundamental questions voters can ask of their judicial candidates.

“[Are you] willing to reach a position that’s contrary to [your] politics, to [your] morality, or [your] conscience, because that’s what the law demands? That’s what voters should be looking for,” Gore says. But, he admits, “How they find that out is really difficult.”

One of the only helpful guidelines for electing judges in Spokane — besides the occasional voter forum or the site votingforjudges.org — is the report put out by the Spokane County Bar Association, which polls its members on judicial candidates’ experience and temperament, among other things. In this year’s poll, Staab edged out Whitaker in each of five categories.

So why do we vote for judges, anyway? After all, 11 states don’t. Neither do most countries in the rest of the world.

Former Supreme Court Justice Sandra Day O’Connor would prefer it that way — and not even for the reason that most of us don’t have knowledge or skills to make intelligent choices. (Electing judges, after all, is the political equivalent of letting your next-door neighbor pick your brain surgeon.)

At a Seattle University law school conference in September, O’Connor — who worked in state courts in Arizona before ascending to the nation’s highest court — spoke out against an elected judiciary. Big-money campaigns, she said, threaten judicial independence. “It’s the flood of money coming into our courtrooms,” O’Connor said. “You haven’t suffered too much of this in Washington — but you will, if you don’t think about this and change it.”

Gore sees some sense in O’Connor’s assertions. “I like that we have presidential appointments subject to Senate approval at the federal level,” he says. “If we incorporated something like that at the local level, I’d be comfortable with it. You might avoid some of the politics of it.”

Still, he doesn’t think appointments are entirely apolitical, either. Neither does DeForrest, who refers to the extremely contentious (and ultimately failed) appointment hearings for Supreme Court candidate Robert Bork in 1987.

“The idea that an appointed judiciary is a panacea — that it’s going to eliminate this political grubbiness from the process — I don’t think that’s the case,” he says.

There’s also the fact, as the Seattle Times has pointed out, that most judges in Washington aren’t elected.

“They arrive on the bench through a gubernatorial appointment. Of the state’s 218 elected judges on the supreme, appeals and superior courts, 60 percent of them were appointed by the governor, according to a 2009 study by Washington State University professors,” says the Times. “And when they come up for re-election, 84 percent of incumbent judges are unchallenged.”

Still, that leaves the rare contest like this year’s battle between Tracy Staab and Bryan Whitaker, in which — for the lack of an informed, involved public discussion — we descend to name-calling and pointing fingers. Hardly the behavior we want in our judges.

Or our voters.

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