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The Candidates That Nobody Knows

By William S. Bailey

Shortly after becoming a lawyer and moving to Washington in 1976, I made an alarming discovery - even intelligent, conscientious and thoughtful citizens have no idea who to vote for in judicial elections. Neighbors, in asking my advice on this subject, have invariably confessed that they do not bother to vote for judges at all or else do so on the basis of uninformed guesses. In 1996, the Walsh Commission made a statewide investigation of this problem and concluded that:

In any given election in Washington State, as many as 50 percent of those who cast votes for other candidates choose not to vote for judicial candidates on the same ballot.

The Commission's final report quoted one speaker at a town hall meeting who said of judicial candidates, “I have absolutely no idea who any of them are. I am embarrassed to say but I couldn't tell you a single name.”

This fact has not been lost on a small group of underemployed, opportunistic lawyers in recent years, who have emerged as “stealth candidates” in judicial elections, hoping that their name will sound appealing or at least vaguely familiar enough to give them an advantage. For example, in a reversal of years of “Irish need not apply” discrimination in the 19 th and 20 th centuries, judicial candidates with Irish surnames now are certain to gather a number of votes on that basis alone. (Everyone wants to be Irish these days, particularly on St. Patrick's Day.)

For well-qualified incumbent judges who are challenged by such stealth candidates at election, life becomes a nightmare. A longtime friend of mine on the bench once was challenged by such an attorney of marginal qualifications. The reason? The challenger thought that this judge's name sounded “funny,” making him vulnerable to uninformed voters (“funny” name aside, this particular judge was rated as one of the very top jurists on the 51 member King County Superior Court bench). My friend took this challenge very seriously, had no private life over the seven months worth of campaigning and spent nearly $50,000 of his own money. (Judicial races attract very few contributors because there are no paybacks.) He received the endorsements of every civic group and all of the newspapers. However, he only won by a margin of 10 percent against an opponent who was not qualified and did not even bother to campaign. He was incredulous that it was even this close. I consoled him with, “There is no sense to be made out of these or any other judicial elections. Most citizens, conscientious or otherwise, go in and guess when it comes to judges.”

It has always been the case in Washington that judges at all levels are elected by the voters. The Governor can appoint judges to fill vacancies on the Washington Supreme Court, Court of Appeals and Superior Courts of every county, but any judge appointed by the Governor must face the voters in the next general election.