Voters can’t readily judge their judges

Two of the most important votes Washingtonians will cast on Nov. 5 are for contested positions on the Washington Supreme Court. The sad but unavoidable truth is that the vast majority of those votes will be completely uninformed.

We are not suggesting that the state’s voters are ignorant or capricious. But they can’t effectively see what judges do.

Good judging is a process, one that involves weighing the admissible evidence, carefully considering the arguments and reaching a reasoned decision based on the law, explaining why the arguments of the losing side failed to carry the day. The mark of a good judge is that even the losing parties feel they got a fair shake. And there’s really no way for anyone who hasn’t been privy to the process – meaning the attorneys and clients involved in a particular case – to know whether the judge did a good job.

Lacking access to information about the process, voters are left to assess the only available information, namely, the actual decision. So we hear great outcry about a Washington Supreme Court ruling that taking pictures underneath a woman’s skirt in a public place is not a criminal offense, or Kitsap Superior Court Judge Anne Laurie’s decision that a fleeing suspect did not commit attempted murder when he fired off shots at a pursuing policeman in Bremerton.

What do those widely denounced rulings tell us about the judges? Not much. The Supreme Court decision actually condemns the conduct at issue. But the court held that by focusing on locations where privacy was expected, rather than on the conduct of the offender, the legislature had not explicitly criminalized what was clearly offensive behavior. The problem was not bad judging, but bad law-writing.

Laurie is less fortunate. Her reasoning is not widely accessible, and the case included another element – the killing of a police dog – that incensed the community. But will Laurie’s tenure be judged on a single unpopular decision? We certainly should not accept at face value the criticism of the losing party – in this case, the county prosecutor.

So if we must elect judges, what’s a voter to do? Too often, it seems, the electorate goes just by the name. A lone woman on the ballot is highly likely to get through the primary; studies suggest that candidates with vaguely “familiar” names do well.

What seems not to matter, unfortunately, is the opinion of those in a position to know – lawyers. Michael Spearman, a well-regarded King County trial judge, had strong backing from the legal profession but failed to survive a primary. He lost to Jim Johnson, a candidate with strong conservative credentials, and Mary Fairhurst, the only woman in the race.

Perhaps public indifference to their professional opinions reflects the relatively low esteem in which lawyers are held (they’re right down there with politicians and journalists), or the criticisms by those unendorsed concerning geographic or political bias. And because lawyers tend to convince themselves of the merits of their cases, any one lawyer’s opinion about a judicial candidate may be colored by an adverse outcome. But biases and specific outcomes tend to balance out.

Perhaps the state bar association could undertake “straw votes” in judicial elections, as many associations do, and publicize the results.

Island voters have another option before Nov. 5: Talk to a few lawyers. With 500 of them living on Bainbridge, you’re bound to know more than one.

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