Charges and countercharges swirl in the campaigns for election to judicial office in Washington state, particularly the closely watched campaign for Position 2 on the Washington Supreme Court. When phrases such as judicial activism, justice for sale, legislating from the bench and destroying judicial independence are being tossed about, it’s hard for the average voter to know what is appropriate — or relevant — in a judicial campaign and what is not.
Much attention has been drawn to the significant increase in campaign spending for judicial races this year. Is this a good development or a troubling one?
The answer depends on the kind of campaigning that occurs. Judges, unlike legislators, are not elected to make the public policy of the state (that job is assigned to the legislative and executive branches).
Therefore, if the advocacy for or against a candidate suggests that judges bring a political agenda to their office (a preference for higher taxes or for lower taxes, for more environmental protection or for less environmental protection), that is a bad thing. On the other hand, judicial races are not just beauty contests. The reason our state constitution provides for the election of judges is not because the voters are more skilled than the governor at evaluating resumes, but because judges should be accountable to the people through the electoral process for their fidelity to the rule of law.
To be sure, there is a risk that voters will confuse fidelity to the rule of law with a shared commitment to particular policy preferences — the kind of evaluation that voters make when judging candidates in the other branches of government. But as we know from observing the behavior of unelected federal judges, there is also the risk that judges who don’t face re-election will come to see themselves as having the authority to remake society according to their own ideals.
If Washington voters come to believe that a system of unelected judges will more faithfully preserve the rule of law, they can replace our current practice — by amending the state constitution. Until that happens, we depend upon judicial elections to ensure that judges are faithful to the rule of law.
But that raises the other important question: What does it mean to follow the rule of law? What should a voter look for in the behavior of a judge or judicial candidate? First of all, following the rule of law does not mean judicial passivity. Sometimes a judge is required to go against popular sentiment, or against another branch of government, to defend the principles laid down in our state (or federal) constitution.
But by the same token, it is not a mark of judicial independence (or at least not of healthy independence) when a judge bases a decision not on the constitution or the laws of the state but upon the judge’s determination of what he or she thinks would be best for the people of Washington state.
A recent example was the challenge to the state Defense of Marriage Act. Proponents of same-sex marriage tried to get the court to impose same-sex marriage on the people of Washington, arguing that the equal protection clause of the state constitution required it. Five members of the Washington Supreme Court rejected this argument and held that advocates of same-sex marriage should make their case in the Legislature. By contrast, four members of the Supreme Court were ready to use their power as judges to dictate the marriage laws of the state.
This case illustrates very well the difference between the kind of campaign that should be conducted in a judicial race. It would be a mistake to think that our vote for a judicial candidate should be based on whether we favor or oppose same-sex marriage. If the state constitution really required same-sex marriage, opponents of same-sex marriage should be willing to recognize that the fault would not lie with the judges for simply following the law; the proper remedy would be to amend the constitution. By the same token, advocates of same-sex marriage should recognize that if the state constitution really does leave the issue to the Legislature, it does serious harm to our political and legal institutions to pretend otherwise.
This year, the attention paid to judicial races is considerably greater than it has been in recent memory. Let us hope that we will use it as an opportunity to reaffirm our commitment to the rule of law.
David K. DeWolf is a law professor at Gonzaga Law School, and a senior fellow at the Discovery Institute.