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Separation Anxiety 

Let's take another look at how we elect judges.

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A strange state law requires that Laurel Siddoway, who was appointed by Gov. Christine Gregoire to fill the vacancy on the State Court of Appeals in May, must already hit the campaign trail. She faces an election on Aug. 17.

The Inlander doesn’t devote much ink to judicial elections, but in this case, because of our quirky state law, what seems to be nothing more than a primary election is actually the general election. On Aug. 17, voters will decide either to retain Judge Siddoway or replace her with Harvey Dunham.

This falls into the category of an afterthought election. Many voters, understandably, will assume this is only a primary election and not a vote at all. And yet, who would say that a position on the State Court of Appeals isn’t an important job that we ought to take seriously?

As an aside, this election-as-afterthought problem illustrates, I suggest, a bigger problem. No less an authority than former Supreme Court Justice Sandra Day O’Connor recommends that we consider doing away with electing judges altogether. She proposes a nonpartisan nominating commission to interview and investigate applicants for judicial vacancies, ultimately to recommend a few candidates to the governor. The governor would then appoint one from the vetted list. Regular “retention” elections would then be held allowing voters to decide whether to keep the judge in office. This said, our flawed system aside, Mrs. Siddoway is by all criteria an excellent choice to serve on the Appeals bench.

Permit a disclaimer: I’ve known Laurel Siddoway for more than 20 years. Our paths first crossed during the ’90s Lincoln Street Bridge fight. I wrote in opposition to the project. Friends of the Falls was formed, and the fight was joined. By that time the cranes were poised at the river bank: The deal was, as they say, “done” — couldn’t be stopped.

Enter Laurel Siddoway. She took the case — on a pro-bono basis — all the way to Olympia where she won. She had pulled off the impossible. Acres of asphalt were prevented from covering the Spokane River Falls in large part thanks to her.

I am not alone in my high opinion. Mrs. Siddoway comes with the highest praise from her peers. She is rated “Exceptionally Well Qualified” by four different ratings organizations. Her opponent, by contrast, has no peer ratings whatsoever.

Instead, Harvey Dunham defines himself through his outspoken political positions, especially regarding the doctrine of separation of church and state. He argues that there is no such thing. What Thomas Jefferson described as a “wall of separation,” argues Mr. Dunham, didn’t really exist before World War II, nor is there any reason for it to exist today. We would all be better off, he believes, if God’s law were followed.

In a series of audio interviews that can be found on his election website (votedunham.com), Mr. Dunham develops his “Christian heritage” theme. It goes something like this: America was settled by Christians who believed that God’s law should be followed; this was the way things were until liberal justices ignored our history and our framers’ intentions.

Dunham incorporates arguments being made across the nation by so-called “dominionists” — conservative Christians who believe that the nation should be ruled by conservative Christians who somehow understand God’s word better than everyone else. Their agenda is advanced by getting fellow dominionists elected to the courts and statehouses. Sharron Angle, the Republican candidate for Senate in Nevada opposing Harry Reid, is their poster child. In a recent interview, she corrected the interviewer who asked about her views on “separation of church and state” by bluntly stating, “but there never was any such thing, Jefferson didn’t want separation of church and state.”

Well, what did Jefferson want? To the extent that dominionists give ground, it is to acknowledge that the words “Congress shall make no law respecting the establishment of religion or prohibiting the free exercise thereof” must have referred to the establishment of a state religion similar to, say, the Church of England.

To make his own case, Dunham uses snippets and quotes from Benjamin Franklin, Grover Cleveland, Peter Marshall and Norman Schwarzkopf — most taken out of context. Were the Puritans religious? Of course they were, but so what? The question should be, were they about religious freedom or religious order? They were really about what historian Thomas Wertenbaker termed “The Puritan Oligarchy.” He points out that it wasn’t persecution that brought Mr. Dunham’s Puritans to New England. Puritans weren’t about seeking tolerance; they were about “rooting out error.”

It’s also important to recall that their run was relatively short lived — even though Calvinism is alive and well today in America. By the 1700s, a decade or so after the Salem Witch Trials, their run as oligarchs was coming to an end. The power of commerce and science and the arts had combined to secularize cities such as Boston.

So we see that this absolutist Christian movement that some hope to revive was rejected by early Americans almost from the start.

Even though judicial elections are supposed to be nonpartisan, Dunham has been endorsed by the Spokane County Republican Party. That says a lot. John Danforth, a former Republican Senator and ordained Episcopal minister, has lamented that his party has been transformed into “the political arm of conservative Christians. The elements of this have included a constitutional amendment to ban gay marriage, (blanket and unequivocal) opposition to stem cell research and the extraordinary effort to keep Terri Schiavo hooked up to a feeding tube.”

Mr. Dunham no doubt is OK with all this — after all, it’s God’s law as he judges it. And if he and enough others like him are elected, that’s what will replace our nation’s laws.

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