Monday, May 26, 2008

How to Choose Our Judges

Judicial candidates are the wall flowers of the political process. They come to the election dance where voters don't know what to do with them.

We elect our judges in Washington; but voters usually know very little about them, in part, because the position is non-partisan and judges cannot run on a platform of promises about the outcome in future cases. Judicial races are last on the ballot and most folks probably haven't given much thought about what to look for in a judicial candidate.

So what should we look for?

All judges should know the law, possess a temperament to decide cases fairly and impartially, and be of unquestioned integrity. In addition, I offer the following suggestions about how to choose our judges and in particular our appellate and Supreme Court judges.

Our judges should be chosen after considering three criteria: experience, understanding the difference between judging and legislating, and the courage to speak truth to power.

First, a judge should have a broad range of experience in and outside the law. The most important role of the courts is to protect the people from the abuse of power, and if you haven't been around the block a few times, you may not know all the places where the power originates or how it is manifested. The range of experience should show curiosity and a willingness to learn new things. It might include handling all kinds of cases in courts all around the state, experience with both sides of civil and criminal cases, arguing appeals in all of our appellate courts and the Supreme Court, writing for publication, achieving an advanced law degree, and running a small business.

Second, a judge should clearly understand the difference between serving as judge and serving as legislator. The judge's job is to apply the law and Constitution as written and not as she or he wants it to be. The legislator's job is to write the law, which usually represents a compromise of competing factions. The judge should not take it upon herself or himself to re-write the laws or re-adjust the compromise. And if the people have spoken directly by initiative or referendum, then the judge should be especially vigilant to preserve the people's will.

Third, a judge should have the courage to speak truth to power. Very often that means government power; and its reach grows as the concern over security increases. But any institution is capable of abusing its power; and the judge needs to have the courage to call it to account.

Applying these criteria should enable us to choose our judges wisely.

Vote Bond for Justice.

Monday, May 5, 2008

In Defense of Free Speech

The right of free speech is one of a handful of our most cherished and important rights. And in three opinions, Justice Fairhurst showed a preference for government power to control or punish citizens for exercising their right to free speech. This is one of several areas where our basic values and our approaches to the proper role of government differ.

The three cases involved political speech, protest speech and commercial speech, and in all three cases the incumbent opposed the court’s decisions, which came down on the side of liberty. The consistency of the incumbent’s approach reveals her political philosophy.

In Rickert v. Public Disclosure Commission,
[1] the issue was whether the authority of the Public Disclosure Commission (PDC) to decide the truth of campaign statements violated the U.S. and State Constitutional protections for political speech. In a race for a legislative seat the challenger said things about the incumbent’s record that were not true, and the incumbent complained to the PDC. The PDC is appointed by the governor, and they regulate campaign finances, a worthy goal. But they also had the authority to investigate the charge that one politician had lied, decide whether the charge was true, and fine the offender. But the offender, who claimed she did not lie at all, argued that she had rights to free speech over which the governor’s appointed commission had no Constitutional authority, and the Supreme Court agreed.

The majority’s opinion came down on the side of liberty. The people can decide which politician is telling the truth; some commission of folks appointed by the governor should not have the power to decide that for us. It’s a simple proposition, and one which the dissent could not accept. Justice Fairhurst joined the dissent, preferring that appointed commissions decide for all citizens which politician is telling the truth.

In Resident Action Council v. Seattle Housing Authority,
[2] the issue was whether the Seattle Housing Authority had the right to prevent tenants from posting signs on their front doors. The signs included political messages, artwork and sometimes offensive symbols. These are low income housing apartments owned and operated by a Seattle Municipal agency. The tenants sued to enjoin enforcement of the ban and it was struck down as a violation of the tenants’ rights to free speech. The majority again came down on the side of liberty – a person’s home is their castle and they can put whatever slogan they want on their front door.

The dissent, including Justice Fairhurst, would have ruled that the government landlord can censor their tenant’s doors.

Finally, in Kitsap County v. Mattress Outlet,[3] the issue was whether a county had the right to impose its commercial sign ordinance on a retail business that hired people to stand on street corners and waive at passersby while wearing colorful oversized raincoats that displayed the business’s name. The majority ruled for liberty and declared that the county failed to show why a permit for such a sign was required, comparing the raincoat signs to signs advertising yard sales.

The dissent, including Justice Fairhurst, would have ruled that the retailer must obtain the government’s permission before the raincoats can come out.

In each of these cases, Jutice Fairhurstwould have ruled for the government and against a citizen’s liberty rights to free speech. I disagree with that approach.

To preserve liberty vote Bond for Justice.

[1] 161 Wn.2d 843 (2007)
[2] 162 Wn.2d 773 (2008)
[3] 153 Wn.2d 506 (2005)