After decades of evaluating would-be judges in a very secret closed-door process, the very establishment King County Bar Association is on the verge of formally stopping brothers-in-law and sworn enemies from sitting on the screening panel. The surprising thing to me is that this wasn’t done a long time ago.
That’s my take-away from reading the column by the association’s president, Richard Mitchell, in the current issue of the Bar Bulletin, the KCBA’s monthly organ. The KCBA is scrambling in the wake of complaints it awarded “not qualified” ratings to women, minority and gay candidates facing the voters for reasons having little to do with their judicial competence.
Given Seattle’s vaunted reputation as a liberal city–it just voted overwhelmingly for same-sex marriage and recreational marijuana use–this is pretty ironic stuff.
Mitchell–who, judging from his color photo in the paper, is black–wrote about proposed rule changes under study. One would mandate recusal of any Judicial Screening Committee member who “is engaged in ongoing litigation or negotiations involving a candidate, is related to a candidate, has been sanctioned by a candidate, or otherwise has a bias against a candidate that would substantially affect the member’s ability to render a fair and impartial rating and evaluation.”
Now, I’m not sure what this has to do with perceived bias against protected classes. However, you might think such common-sense considerations already was the rule. That would be incorrect thinking. The current language only mandates recusal if the member is in the same firm or office space as the candidate or has a business relationship. And even then, the member is allowed to whisper in the ears of other members any juicy gossip (the technical authorization for this in the current rules is “entitled to provide background information.”)
Jack Nicholson as Marine Col. Nathan R. Jessup in “A Few Good Men”
Right now, the official rules read a lot like the allegations against corporations accused of anti-trust violations. Keep almost nothing in writing. Employ secrecy. Say little. The cryptic one- to four-word long evaluations released remind me of Jack Nicholson’s “You can’t handle the truth” military character in the 1992 movie “A Few Good Men.”
In the movie, of course, Nicholson was guilty as hell. The KCBA system is hardly unique to Seattle, but in my judgment does little to promote public confidence in the legal system.
As I see it, the main problem in the current credibility crisis is the bar association’s firm belief that the public has no right to know the reasons for its ratings. You can see the 2012 evaluations right here. The KCBA rules are similar to those in other states. Only the ratings are released: “exceptionally well qualified”, “well qualified”, “qualified”, “not qualified,” “insufficient information to rate,” and “refused to cooperate.”
That’s it. No further reasoning is released.
Now, when I read a political endorsement–say, one by The Seattle Times–I really could care less who gets the nod. What I do care about is the factual reasoning–why one candidate is considered better than another candidate. This is especially true in judicial races, where the average voter knows next to nothing about individual candidates. On the bench, judges are expected to explain their logic. No less should be expected of the KCBA.
The KCBA obviously is chock full of lawyers. Maybe there’s a fear of getting sued for uttering any facts beyond a political opinion, which is clearly protected by the First Amendment. Either that or there is real prejudice at work. Whichever, I think this is a big disservice to voters.
By way of personal disclosure, I should note my status as a dues-paying member of the KCBA. This is not because I am admitted to the practice of law in Washington State. I’m not, nor do I even practice law. It’s because–admitted in other states before becoming New To Seattle–I take required continuing legal education courses in Seattle and pay a cheaper rate if I’m a KCBA member.
The year 2012 hasn’t been a good one for the KCBA and the way it vets judicial candidates. Apart from its ratings, another KCBA unit, the Judicial Evaluation Committee, publishes a survey of lawyers about the judges before which they practice. This year, a small group of local prosecutors opining en masse produced an unfavorable evaluation of one sitting judge running for reelection. The resulting brouhaha–fueled after KCBA’s own consultant revealed how flawed and skimpy that survey process was–forced Mitchell to write a separate column last month about how the KCBA was working to fix that problem, too.
Part of his proposed solution seems to include additional secrecy concerning how individual categories of respondents respond. I’d say more sunlight is needed, not less.