In 2005, former Washington State Supreme Court Justice Richard Sanders, who is again running for the Court this fall, stated: “[N]o private person or group can possibly threaten judicial independence because the independence about which we speak is independence from the executive and legislative branches of government—not independence from the private sector.” “Judge-Election System Works Well,” The Seattle Times, Aug. 9, 2005.
Sanders’ position approaches the slippery slope toward partisan state judicial elections, which the Ninth Circuit Court of Appeals endorsed earlier this month under the auspices of the U.S. Supreme Court's Citizens United decision. Sanders County Republican Committee v. Bullock, No. CV-12-00046 (9th Cir., Sept. 17, 2012).
However, under no circumstance should we allow our state to go down that slide. According to a recent empirical study, when judges are elected in partisan elections, “every dollar of direct contributions from business groups is associated with an increase in the probability that the judges will vote for business litigants.” Michael S. Kang & Joanna Shepherd, “The Partisan Price of Justice: An Empirical Analysis of Campaign Contributions and Judicial Decisions,” 86 N.Y.U. L. Rev. 69 (2011).
Indeed, Justice Sandra Day O’Connor wrote upon her retirement: “When you enter one of these courtrooms, the last thing you want to worry about is whether the judge is more accountable to a campaign contributor or an ideological group than to the law.” “Take Justice off the Ballot,” The New York Times, May 22, 2010. Partisan judicial races will only compound this problem.
Even though partisan judicial races are not yet allowed in Washington State, we in the Evergreen State need to now ask ourselves: Should we be worried that if Richard Sanders is re-elected to the State Supreme Court, he would be more accountable to business groups than to the rule of law? I think so. Put differently, can the average Washingtonian afford to elect him? I think not.
Gabriel "Gabe" Galanda is a partner at Galanda Broadman PLLC, of Seattle, an American Indian owned law firm. He is an enrolled member of the Round Valley Indian Tribes of Covelo, California. Gabe serves as a Quinault Nation Court of Appeals Judge and a tribal administrative law judge for other tribes, as well as mediates and arbitrates Indian Country-related disputes. Gabe can be reached at 206.691.3631 or firstname.lastname@example.org.