By Julia K. Stronks, J.D., Ph.D.
Special to The Seattle Times
This fall we will elect three state Supreme Court justices. These elections are hard for voters. When voter turnout for other positions is around 40 percent, the number of people who actually vote for judges can be as low as 20 percent. The main reason is that judicial elections rarely give us the same political "cues" as other elections. We know so little about the candidates, it can be hard to make choices.
Washington is one of seven states that have what is supposed to be a nonpolitical Supreme Court election. Our judicial candidates do not affiliate with political parties and are not allowed to make political promises. In theory this makes sense because the judiciary is supposed to interpret what the law says in a nonideological way. Politics is not supposed to enter in. However, as the recent Washington Defense of Marriage Act (DOMA) case demonstrates, politics always influences the judiciary.
The DOMA case upheld the state ban against same-sex marriage, but the opinion had no majority perspective. Six of the nine justices wrote separately; the case is interesting because the way different justices articulated the rights at stake "outed" their political preferences. Sadly, the case also gives a more public platform to political interest groups formed to influence the upcoming election.
Judges adhere to certain tests to determine whether our rights have been unconstitutionally tampered with. Different states' legal approaches to same-sex marriage have hinged on two things. First, do judges see the right as fundamental? Fundamental rights receive the highest protection. Second, do judges see withholding of marriage licenses to gay couples to be arbitrary? Arbitrary laws rarely survive judicial scrutiny.
Marriage has been determined by the Supreme Court to be a fundamental right. If same-sex marriage cases are analyzed as the right to marry, the right receives high protection. Same-sex activity, however, has not been assessed as a fundamental right. If same-sex marriage cases are analyzed as the right to be in a gay union, the right receives only minimal protection.
In Massachusetts, the state Supreme Court said the right at stake was the right to have equal access to government benefits without arbitrary discrimination. Under this test the law barring same-sex marriage failed, and same-sex couples were allowed the same access to the government's marriage-license system as other couples.
In Washington, most of the justices said the right at stake was the right to marry someone of the same sex. Here the test standard was very low and the legislation was upheld.
However, some of the dissenting Washington justices took the approach of the Massachusetts court. These justices were then severely criticized by their fellow jurists. The accusation was that the dissenting justices did not understand constitutional law and were being stubbornly political. Court watchers reading the opinion were surprised by the tone of the justices. The Washington Supreme Court is normally respectful of different legal analyses and is respected by the courts of other states.
This case was difficult and it stirred emotion on both sides. It demonstrated that it is very hard to remove politics from the court. But, those of us irritated by the fact that the decision was not more squarely in favor of DOMA, or angered by the result of the case, or concerned about the demeanor of the justices, have to caution ourselves. If we are interested in selecting wise justices who focus on careful legal analysis and interpretation of the law, we have to be sure that we do not let politics control our perspective.
As we prepare to select justices this fall, we will be contacted by interest groups that have formed to seek advantage in the courts. The groups have professional-sounding names like "the Constitutional Law PAC," but when we look at what these groups are, we see that they are often funded by organizations with a strong political agenda. Ignore these groups. The best sources of information about judicial candidates are the bar associations and practicing lawyers.
Bar associations are not politically neutral, but they are better than we are at assessing the intellectual acumen and judicial temperament of judicial candidates. They know whether a candidate can write and analyze, and they may know whether he or she has the ability to develop consensus on a bench made up of different justices with different opinions.
If we allow interest groups or politics to control our judicial selections, we participate in politicizing the court. That is bad for democracy.
Julia K. Stronks is an attorney and holds a Ph.D. in American government. She is a professor of political science at Whitworth College.
Copyright © 2006 The Seattle Times Company
Note: The opinions expressed in works written by Whitworth faculty and staff do not necessarily represent the views of Whitworth College or members of its community. They are, however, symbolic of Whitworth's commitment as a Christian college to the free exchange of ideas.