How to pick a judge?

Photo above: David Brody, center, works with

Students at WSU Spokane. (Photo by Jeff T. Green)

PULLMAN – Judicial candidates will appear on the November election ballot in Washington. But in some cases, that’s just a formality. They’ve already won the office.

That’s because, though the state uses popular election to seat its judges, if they step down from office before their term is ended, the governor appoints the replacement. Right now in Washington, 60 percent of judges started office via such an appointment.
And when they run for re-election, they are rarely challenged, often due to the time and expense required to campaign against an incumbent. In 2008, 84 percent of judges in the state have no opponent. (See accompanying story about an earlier survey on uncontested elections).
“Essentially, we have an election system with very few elections,” said David Brody, associate professor and academic director of the Criminal Justice Program at WSU Spokane.
This may be fine if it’s what the people of the state want. But a WSU survey in progress is showing that it’s not.

Cooperative effort
Brody and Nicholas Lovrich, professor in the Department of Political Science, are in the middle of a survey of 4,000 state registered voters. They have early results from 600 responses and just sent out a second wave of surveys. They anticipate receiving about 1,200 responses, Brody said.
The professors, along with WSU criminal justice graduate students in Pullman and Spokane, were hired by the American Judicature Society, a nonprofit organization that addresses issues involving the judiciary and has commissioned similar studies in other states. WSU, the Washington State Bar Association and the University of Washington School of Law also funded the work.

70 percent want change
The survey asks questions about two methods of choosing judges: first, the contested nonpartisan election used in Washington; and, second, the commission or merit type used in perhaps 20 other states. Under the commission system, a nonpartisan commission of lawyers and nonlawyers interviews applicants and recommends three — from different political parties — to the governor, who then appoints one. Within two years — and then every four years for trial courts and six years for appellate courts — all judges must stand for a retention vote; that is, voters can decide yea or nay for keeping the judge in office.
Early survey responses, Brody said, show that 70 percent of participants favor the commission system, 25 percent the current system, and 5 percent have no preference.

Retention vote favored

This parallels earlier findings of a state bar judicial selection task force whose majority report favored adopting the commission/merit system. But the bar’s board of governors instead adopted the minority report, Brody said, which favored nonpartisan election.
“It’s very political,” he said. “The judiciary generally likes it the way it is. And the bar correctly noted that Washington has good judges.
“However, the bar also assumes, incorrectly, that the public favors the current system of nonpartisan elections,” Brody said.
“But survey comments show respondents are surprised that the current system doesn’t really allow them to vote for their judges,” he said. “They are surprised and turned off.” Most survey participants favored the commission/merit system  because it lets voters express their preference for the judge remaining in office or not. (See box on Montana’s judicial selection process).

Focus groups next

Brody will present a draft of the final results in November to a conference on judicial selection at the UW law school.
Since altering how the state chooses judges would require a change to the constitution, he expects the information may be used to inform legislators, judicial leaders and the state bar that the public may be ready to support an amendment.
“I would hope the state supreme court would take the lead on the issue and form a commission to examine this more closely and weigh the pros and cons from all perspectives,” Brody said.
In the meantime, the researchers anticipate additional funding to conduct focus groups to explore in detail which voters might prefer what type of judicial selection and why. About half of survey respondents indicated they are willing to speak to someone as a follow-up to the survey, Brody said.

Montana a model?

“Montana’s judicial selection process is a hybrid that I think might be the best,” said David Brody, associate professor and academic director of the Criminal Justice Program at WSU Spokane.
In addition to using a nonpartisan nominating commission to fill midterm vacancies, the state holds contested elections for judges. But if there is no challenger, the judge must stand for a retention vote.
“So there’s always a chance to vote a judge off, regardless of whether he or she faces an opponent,” Brody said.

Why lawyers don’t run for election
This year more than 84 percent of Washington’s judges facing re-election were unchallenged. The lack of attorneys willing to run for judgeships is common in states that use nonpartisan elections to select their judges.
To learn more about the reasons for this dearth of judicial candidates, David Brody, associate professor and academic director of the Criminal Justice Program at WSU Spokane, surveyed a random sample of attorneys from across Washington.
Of the 1,100 attorneys who participated in the 2007 study, more than half indicated they would accept an appointment if it were offered. Despite this apparent interest in serving, only 72 of the 1,100 attorneys surveyed had ever run as a candidate in a judicial election.
A vast majority indicated that the political nature of judicial elections was central to their deciding not to run for the bench. More than 80 percent responded that the need to mount an election campaign, raise and spend large sums of money, and devote time away from law practice and family life were factors in their not entering a judicial election. Of the 259 attorneys who seriously had considered running for judge, more than 90 percent said the above issues factored into their decision not to run.
Results from the survey were provided to the Washington State Bar Association’s judicial selection task force. Based in part on survey information, the task force’s majority report recommended abandoning nonpartisan elections for selecting judges in favor of a commission-based system in the hopes of attracting well-qualified attorneys to the bench.

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