Wednesday, August 9, 2006

Voting for

A partnership of about a dozen organizations (including WSBA, KCBA, WSTLA, Washington Defense Trial Lawyers, and the League of Women Voters of Washington) has launched Voting for, a website with information for state voters about judicial candidates. (See Dec. 9 post about the Judicial Selection Coalition.)

The site includes a campaign financy summary and links to media stories.

Eventually the site will include links to endorsements and ratings by various newspapers and organizations.

I've been thinking about the endorsement process since I read a piece in the Stranger about Justice Madsen (Josh Feit, Dishonor Role, Stranger, Aug. 3, 2006), who was endorsed by SEAMEC (a gay and lesbian rights group) two years ago and yet wrote the majority opinion upholding the Defense of Marriage Act last month (Andersen v. King County, links to majority, two concurrences, and three dissents).

During the endorsement process Justice Madsen said that she did not believe that the purpose of marriage is for the nurturing of children or that same-sex marriage is a threat to the institution of marriage and the social fabric of the nation. The questionnaire and interviewers did not ask: "Applying a rational-basis standard to a statute such as DOMA, do you believe that the legislature could rationally believe those things?" And of course her assessment that the legislature's belief was rational was the hook for her decision, not her own belief. Yet can one blame the interviewers for being surprised by her decision? How could interviewers -- including laypeople untrained in the subtleties of constitutional analysis* -- be able to differentiate between what the candidate believes and what the candidate would later say it would be rational for the legislature to believe?

Canon 7(B)(1) of the Code of Judicial Conduct provides:

(1) Candidates, including an incumbent judge, for a judicial office:
* * *
(c) should not
(i) make pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office; [or]
(ii) make statements that commit or appear to commit the candidate with respect to cases, controversies or issues that are likely to come before the court; * * *
How can an advocacy group assess a candidate's likely approach to cases without expecting the candidate to violate that rule?
* This is not to slight laypeople or any other interviewers. I've studied constitutional law a bit and my crystal ball would have missed this one too.

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Photo: Temple of Justice, Olympia, from Washington Courts website.

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