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Vote Not, Lest Ye Pick Judges

Washington, like the majority of states, elects most of its judges. From county superior courts to the high-court in Olympia, the people decide . . . or so it would seem. In reality, under Jay Inslee’s long- (long-, long-, (long-)) tenure as our governor—he will, at its end, be tied for first—scores of judges have been appointed to replace retired or promoted (and not just deceased) predecessors. This would not be an issue except that dozens of these have been strategically appointed—that is, after the deadline for balloting passed, ensuring that their first election is unopposed.

That the voters then confirm Governor Inslee’s choices at the next election is little consolation in light of the ample evidence that incumbency greatly heightens the chances of victory, especially for judges. Hoisting an interim appointee onto the voters as a default incumbent greatly ups a governor’s chances of shaping the judiciary to his or her ideological liking, and chief executives elsewhere face barriers—like non-partisan nominating commissions—that prevent the feudalization of their judiciaries. Now in his final, twelfth year in office, Governor Inslee has appointed 90 of Washington’s roughly 227 electable seats he is tasked with replacing when vacant and who now still occupy the bench (so, almost 40%)—including 23 of King County’s 54 superior-court judges.

Inslee’s undemocratic appointment practices began soon after his inauguration. In 2014, Inslee appointed Mary Yu to the state supreme court, who at the time openly “expressed some relief that she [would not] face an opponent in the fall election.” In her own words, “I would like to believe that it’s because I’m a trial-court judge with 14 years of experience that people would say ‘You know what? This is a legitimate person who maybe deserves an opportunity.’” She could only surmise as much, of course, since Evergreeners never had the chance to choose between her and an alternative in an open contest. Justice Yu remains on the bench, a decade later, alongside two other Inslee appointees—Helen Whitener (also appointed after the ballot deadline) and Raquel Montoya-Lewis, who replaced the ailing Justice Mary Fairhurst (who had sadly passed) While there is nothing to suggest that these justices are not legitimately in office, there is a reasonable question as to whether allowing a governor so much power to appoint judges who rarely face opposition grants too much authority to the executive over the judicial branch of government.

So what’s the alternative? Personally, I am agnostic on which system—elected or appointed—works better for the judiciary. . .  or what “better” even means in this context. But pick one or the other, instead of using the former as a subterfuge for the latter. If the endgoal is to offer voters genuine options from the outset, we cannot allow the next governor—Democratic or Republican (or, who knows!)—to function as a one-man (or -woman) judicial-nomination commission.

In severe contravention to the core democratic-republican principle of self-governance, our de jure elected judiciary is now stacked with de facto appointees, cued up for the voters to then confirm rather than truly choose. Again, to any readers who suspect this entire argument is mere “sour grapes”—“Well, if his opponents do not like Inslee’s judges, they should fight smarter to win the governorship!”—I respond twofold. First, electing governors is inevitably a far more partisan exercise than is the choice of who should dispense with the laws of the state—or at least it should be. Second, the only way this paradigm even stands a chance is to end our de facto election-via-appointment enterprise full stop. I do not believe a would-be Republican Governor Reichert (or Bird) should have the chance to “rectify” Inslee’s shenanigans with their own mischief before we usher in a system far less susceptible to partisan adulteration.  

So, when the Legislature’s next session opens, it behooves our lawmakers to consider overhauling our flawed judicial-nomination system with one in which the governor is not the first and last word on who replaces a retiring or advancing incumbent. I have some ideas, though they are too “in the weeds” for this format. But if requested I am more than happy to appear in Olympia and make the case for an alternative that better reflects voters’ choices.


Sam Spiegelman