Governor Gary Locke’s Remarks
Superior Court Judges’ Spring Program
April 26, 2004

Good morning, “your honors.” It is indeed an honor to be here. I can’t tell you how proud I am to be among you.

Proud of Washington’s Superior Court judges. Proud of the Washington state judiciary that has been proclaimed among the top five in U.S. in competence.

Proud that I have appointed 54 of the best-qualified Supreme Court, Court of Appeals and Superior Court judges in the history of this state. Proud that nearly half of these appointments have been women. Proud that more than 20 percent of these judicial appointments have been people of color. I am proud of the many “firsts” we have achieved with our judicial appointments, like Judge Frank Cutherberson and Ted Spearman, the first African American judges on the Pierce and Kitsap County Superior Court benches, and Ken Kato, first person of color on the Division III Court of Appeals.

At the Superior Court level alone, I’ve appointed 48 exceptional candidates to the bench. It’s great to see so many of you here today! And we will be making three more appointments in the next few weeks:

· In King County, to replace retiring Judge Don Haley

· In Pierce County, to replace Judge Marywave Van Deren, whom I just appointed to replace retiring Judge Karen Seinfeld at the Court of Appeals Division II

· In Benton-Franklin Counties—a joint judicial district—to replace retiring Judge Carolyn Brown

I am also proud that all but one of my Superior Court judicial appointees have been retained by voters as judges despite spirited, contested races. This is a testament to your outstanding qualifications, your integrity, and the great job you’re doing on the bench.

Finally, I am proud to be able to say that Washington’s judiciary has never been better! We could teach a thing or two to the Mariners and Seahawks and Sonics, because we have a very strong bench!

I have often been asked why I devote so much time and care to judicial appointments. The short answer is because I must—it’s too important not to.

This morning I’d like to share the longer answer with you by explaining how my convictions about the judiciary evolved. Then I’d like to share some thoughts on the future. And how we might make our great judiciary even better and more effective.

Standing here this morning, I can’t help but recall another morning, many years ago. My first-year in law school at Boston University.

Like all of you, my legal education began with three words that strike fear in the hearts of law school students everywhere:

“Marbury . . . . . versus . . . . . Madison.”

Our presence here today can be traced back to Marbury v. Madison. The role of our modern American judiciary can be traced back to it, with the power of judicial review over the actions of the legislative and executive branches.

I encountered Marbury v. Madison first in Civil Procedure. Then again in Constitutional Law. Once more in Federal Courts. Every class treated the case as important, but important for different reasons. At times, I felt as if I would spend my entire life in an endless quest, trying to answer the question “What does Marbury v. Madison really mean?”

I now realize that this decision is symbolic of all law. A ruling means different things to different people. A court’s decision has many implications, with different consequences to different people. The various holdings of Marbury v. Madison show us just how important judges are in interpreting and applying the constitution’s inherent complexities to the cases before them.

I made it through law school—and all those go-arounds with Marbury v. Madison. I then joined the King County Prosecutor’s office. That’s when my education about judges began in earnest.

Those were very interesting and intellectually stimulating days. I served with several future judges in the Prosecutor’s office. They included Superior Court Judges Bill Downing and Barbara Johnson, Court of Appeals Judge Robin Hunt, and Federal Judge Bob Lasnik. And opposing counsel like Ronald Kessler and Richard McDermott, both of whom I appointed to the Superior Court. Of course, we didn’t know at the time that we had such greatness in our midst.

My real education came in the courtroom. I learned firsthand what made an outstanding judge. From a lawyer’s perspective, I could see why some judges were so much more respected than others.

I have very fond recollections of King County Superior Court Judges like Frank Howard, Stan Soderland, and Barbara Rothstein. When I appeared in their courtrooms, I always knew they would be well-prepared. I knew they read not just the briefs the lawyers submitted but the cases cited. Which meant we needed to be well-prepared too!

These judges listened with an open mind to our arguments in court. When we made key motions that were critical to our case strategy, the motions weren’t deferred or taken under advisement until the end of trial. When Judges Howard, Sauderland or Rothstein rendered their rulings and judgments, even if I lost I left satisfied that the law had been upheld. That justice had been done. These judges fully considered the arguments, and always carefully explained the basis for their decisions. Each decision was fair, thoughtful and well-reasoned. In a word, they were judicious.

As a prosecutor and lawyer practicing in Superior Court over the years, I realized the profound difference that good judges make—in the courtroom and in our society. And that was reinforced by the occasional times when I was embarrassed by the reasoning of a judge’s ruling – even if the ruling went my way (right result/wrong reasoning), or when I was embarrassed as a lawyer by a judge’s demeanor and statements on the bench.

So when I became Governor, I resolved to treat judicial appointments with the importance they deserve and to appoint highly qualified judge. Because, judges, once appointed will serve for many years well beyond my terms as Governor.

So we developed a thorough, open process to select appointments to the Court. It may seem mundane, but the details have made for great outcomes.

My legal counsel interviews every single applicant who applies. Let me acknowledge here the two great counsels who have worked for me, Everett Billingslea and Jennifer Joly. We make countless reference phone calls—to current judges at all levels, to local bar associations and specialty bar associations, to attorneys who have practiced with the applicant, to the local prosecutor and the public defender’s office.

We typically select 3 or 4 finalists for each vacancy. I spend at least an hour with each one. I imagine some of our candidates look at me and think of John Houseman in the movie “The Paper Chase.” I enjoy these interviews. I enjoy discussing the law, because I have a passion for the law. I will talk to judicial finalists about several cases, and ask them:

1. Right result, right reasoning?

2. Right result, wrong reasoning?

3. Wrong result, right reasoning?

4. Wrong result, wrong reasoning?

I know that may sound a little pedantic, but at least I’m not grilling them about Marbury v. Madison!

When I make an appointment, I like to do something else. I travel to the county seat or courtroom to announce to the court and the local community in person my selection. Yes it takes time. But it confers upon the appointment the formality and solemnity that being selected as a Superior Court Judge merits. These appointments are important to our state, and we must treat them that way.

I remember a conversation I had once with a retiring judge to thank him for his 20 years of service and to get his thoughts on the candidates interested in succeeding him. This was in a remote part of our state. He told me that he learned he was becoming a judge in a simpler fashion than my practice of in-person visits to the county seat. The office of the Governor simply telephoned him and said he was being appointed based on his written application—without an interview or any other contact.

I believe that the process should honor the importance of the role each of you plays in our society. That’s why I approach judicial appointments very seriously. Because the cases you preside over and the rulings you render are monumental and life-altering to the parties before you. Most will never be appealed.

Judges are essential to an effective democratic government and society. You lead a legal system that sets us apart from other countries. One that protects the rights of political, religious, and ethnic minorities. One that values equality and fair treatment. One that balances society’s needs and rules. You are often the voice of reason and conscience when others have lost both.

Judges make possible the peaceful, orderly and rational resolution of disputes.

Peaceful because disputes are not settled by violence, but by discussion and reason. Your courtrooms are the fair and neutral forums in which grievances may be heard and disagreements settled.

Orderly because our legal system is well-defined, methodical, and known or knowable to all. It is public and accessible. It can be learned and understood. It is not arbitrary but purposeful. And while outcomes may not be predictable, the process and systems themselves are stable, predictable and consistent. You preserve and protect order in our courts and in our legal system.

Rational because our system of jurisprudence is founded on well-defined principles. These principles are derived from a vast body of legal knowledge and authority. Rational because while American jurisprudence is profoundly well-developed as a discipline, it is also humane and alive, responsive to changing ideas—and a changing world.

One example speaks volumes. In 2000, with disputed ballots from Florida and no clear winner in the Presidential election and an apparent Constitutional crisis on our hands, we faced what would be in many countries be cause for civil war, rioting, or massive chaos. For our country, it was instead an opportunity to prove once again the merits and benefits of our legal system—and the profound value of our judiciary.

Being a democrat, I would also add: wrong result; wrong reasoning!

I am proud of the job that you do, and humbled by the responsibility that you bear.

You do a great job, which naturally means I’d like to ask you to do more! This brings me to the other subject I want to address this morning—a few thoughts on how the judiciary might improve in the future.

One area that concerns us all is sentencing in criminal cases. This year is the twentieth anniversary of the Sentencing Guidelines taking effect. As a legislator, I supported the idea of guidelines. I voted for it. I still support it. Sentencing guidelines have done a lot to reduce disparities. Disparities in felony sentencing among the state’s urban and rural areas. Disparities between men and women. And disparities among defendants of different races and ethnicities.

But the sentencing guidelines have made it too hard for judges to consider the unique circumstances in individual cases. While reducing discretion among judges, it has transferred the discretion to the prosecutors: discretion over charging decisions and plea negotiations. And the appellate courts have interpreted the sentencing reform act to allow you less discretion.

So while I support sentencing guidelines, I hope judges will propose and actively push for legislation giving you greater discretion. If you don’t, who will?

I’ve heard from many of you your frustrations with the rigidity of the guidelines. You are much too experienced, too well trained, and too dedicated to equal justice to let sentencing laws turn you into robots.

Not all criminals are exactly the same. Sentencing must be more flexible.

Another area in which judges must take a more active role is community education. The public doesn’t always understand the independent role our judiciary must play. Occasionally we hear accusations that “the people’s will” has been thwarted when statutes or initiatives are struck down or repealed. Yet when it’s a law they don’t like that’s overturned, these same accusers are silent.

We’ve all heard the public outcry when evidence must be suppressed. We’ve heard the outrage when a confession must be thrown out. I am proud that again and again, you have the wisdom, integrity and courage to do the right thing. Even when the “right thing” is not politically popular and could translate into lost votes down the line.

Ignorance is a powerful adversary. But it is easily defeated by information and knowledge. Washington judges need to get out into the community more often and share with the public the complexity of the issues you face and the Solomon-like decisions you must render. The public needs to understand the role and need for an impartial and independent judiciary.

Clearly there is public interest. Court TV and lawyer shows have proliferated across the airwaves and cables for years now.

But our citizens shouldn’t learn about our legal system from actors and actresses and people yelling on soundstages. They should learn about it from you. I encourage all of you to take a more active role in educating your communities about what it means to be a Superior Court Judge. They will listen with great interest.

Similarly, I encourage you all to be mindful of your responsibility not just as judges but also as role models. Few professions carry a greater obligation for care in public conduct. Because you are in the profession of judging others. Compromises in your perceived integrity reflect negatively not only on you as individual jurists but on our entire judicial system.

In an age of 24-hour news coverage, the search for shock value and lurid sound bites is relentless. The hot blaze of TV spotlights and screaming banner headlines are too easy to attract and impossible to escape.

Transgressions involving alcohol are especially damaging to public confidence. The path you’ve chosen carries with it the reality that we are always being watched. In large social gatherings or even small get-togethers with friends, our behavior is under scrutiny. The plain fact is that in any setting beyond the privacy of your own home, even a single drink carries some risk. Anything more is an invitation to disaster. The plain fact is that you are probably best-advised to never drink in any public or social setting, no matter how innocuous it may seem, or adopt a rigid one drink rule.

Our judges must be above reproach. Careless behavior that might go unnoticed in mainstream society is absolutely not an option for judges.

This is a stringent, even harsh standard of conduct to adhere to, and judges are human too. But this demanding standard is commensurate with the importance of your position in a law-abiding society. As Thurgood Marshall once observed, “We must never forget that the only real source of power that we as judges can tap is the respect of the people.”

As highly respected role models, you also have the power to attract more people of color and more women to careers in the judiciary. I mentioned the more than 20 percent minority and nearly half women I’ve appointed. While I am proud of our progress, it isn’t enough because the overall profile of our judiciary falls short of reflecting our communities. Indeed, our judiciary should reflect not just our society, but to some degree the litigants appearing before our judges so that the rulings, especially in criminal cases, have greater acceptance.

I encourage you to mentor young attorneys from diverse backgrounds and help those with interest and ability down the judicial career path. You have the power to make an important difference and ultimately instill greater respect fort he judiciary.

For 200 years, American jurisprudence has recognized your central, vital importance to our legal system as trial court judges. To quote a long-revered opinion: “It is emphatically the province and duty of the judicial department to say what the law is.” The source of that simple yet profound sentiment is none other than Marbury v. Madison.

I am very proud of our state’s judiciary. The quality of our Superior Court and other judges has never been higher. And I suspect the challenges have never been greater. But you are equal to the task.

On behalf of the people of Washington, thank you for the great work that you do in the fair and efficient administration of justice in upholding the independence of the judiciary and in serving in the judicial branch of government -- a branch that is so critical to our democratic form of government.

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