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Supreme Court, Gregoire don't mix

Guest Editorial by Richard B. Sanders
Special to The Spokesman-Review

August 25, 2006

Washington State - Washington Gov. Chris Gregoire recently announced she'll be dialing for big dollar contributions to her favorite political action committee to influence the course of this fall's Supreme Court elections. She has raised over $100,000 to date with some individual contributions in the $20,000-$30,000 range, all well above the $1,400 individual contribution limits to a candidate.

Contrast this with Gov. Gregoire's May 1, 2006, Law Day speech to a dinner hosted by the Trial Lawyers. There she proclaimed judges should not be for sale and that large contributions to judicial campaigns threaten an independent judiciary.

This comes from a governor who raised more than $6.3 million for her own election, $4.64 for every vote she received. By contrast, the most money raised by a Supreme Court candidate in that same statewide election was $539,000, only 46 cents per vote, little more than a postage stamp. She outspent the "big spending" Supreme Court candidate 12 to 1, and now worries the court is for sale?

However, I do share concern about any threat to an independent judiciary. But we must recall the independence about which we speak is independence from the legislative, and particularly the executive branch, not the general public.

Our Founding Fathers understood very well what an independent judiciary is and why we need it. They were students of Baron de Montesquieu's 18th Century treatise, The Spirit of the Laws, which articulated the threat to liberty posed by government, and attempted to meet it by separating the powers of government into competing branches: legislative, executive and judicial. Montesquieu stressed the importance of keeping the judicial branch out of the executive's hands. "There is no liberty," he wrote, "if the judiciary power not be separated from the legislative and executive."

This concern was also reflected by the signers of the Declaration of Independence who found cause for rebellion against King George III for making judges dependent on his "will alone."

James Madison wrote in The Federalist Papers, "The accumulation of all powers legislative, executive and judiciary in the same hands . . . may justly be pronounced the very definition of tyranny" and cast the judiciary as the guardians of our Constitution so it would not be rendered a "mere demarcation on parchment." Urging Congress to adopt the Bill of Rights, Madison said we must be able to rely upon an independent and courageous judiciary to "form an impenetrable bulwark against every assumption of power in the legislative or executive" against the rights of the people thus secured.

Thus when Gov. Gregoire involves herself in judicial campaigns, she is undermining the court's independence by sending an unmistakable message to members of the judiciary about which side their bread is buttered on. Stand up for private rights against government encroachment and she'll raise big bucks to replace you, and vice versa.

By far the most frequent litigator before the Washington state Supreme Court is the state itself. Normally these litigations pit the government against a private citizen or some group of private citizens. It is the job of the judiciary to protect the rights of all litigants, and that sometimes means protecting individuals from governmental excess.

An independent judiciary therefore must be willing to say no to the government, or Gov. Gregoire, when the law requires it. While that may not make many friends in the governor's mansion, it is essential to preserve a free society. There is no place for the governor's thumb on the scales of justice.

It is also noteworthy that Gov. Gregoire publicly advocated capping contributions to judicial campaigns at $1,400 per person per election and signed a bill into law to that effect; whereas she is now soliciting large contributions to a political action committee for which the law imposes no contribution limits whatsoever.

Moreover, while a judicial candidate must stand behind the truth and accuracy of his or her campaign, not only in a moral sense but also because legal ethics require it, a political action committee is not bound by any honesty requirement when it makes that last-minute media buy for attack ads.

I fear there is a hidden agenda here, an agenda to undermine the interest we all have in a courageously independent judiciary which will protect all our legal rights; yes, even when threatened by the government itself. Even in a state which elects its judiciary, 70 percent of all sitting judges began their judicial career with an appointment from the governor.

Gov. Gregoire, I think you've already had plenty of influence over who sits on the courts. Hands off these elections. This is the time the people decide who sits on our courts, not the governor.


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