Sept. 20 Daily News editorial

Since retiring from the U.S. Supreme Court in 2006, Justice Sandra Day O’Connor has devoted herself to changing the way many states select judges. O’Connor believes judges should not be elected by popular vote, as they are in at least two dozen states, including Washington. She argues that money and campaign attack ads pose a growing threat to both public confidence in the justice system and judicial independence.

O’Connor brought her case to Washington a week ago, speaking at a Seattle University Law School conference. She proposed that Washington adopt a merit-based appointment process, similar to one adopted by her home state of Arizona in 1974. Nonpartisan commissions would select judges based on merit. At the end of their first term, voters would decide whether or not to retain the appointed judges.

It’s not a perfect system. The commission, depending on who appoints its members, might not be the “nonpartisan” body O’Connor proposes. Indeed, it’s difficult to see how partisan influences can be eliminated. But the proposal does have the advantage of taking special-interest campaign donations out of the mix. Judicial candidates wouldn’t have to court donors with an agenda. That would amount to a significant improvement over the current process.

Money has become a very real problem in judicial elections. The problem was highlighted by the U.S. Supreme Court decision last June in Caperton v. Massey Coal. The ruling held that elected judges must recuse themselves from cases when large campaign contributions from interested parties create the appearance of bias. It involved a coal company that had spent several million dollars helping a West Virginia Supreme Court candidate unseat an incumbent. The new judge later cast the deciding vote in two ruling that overturned lower court verdicts against the company.

O’Connor noted during her talk last week that the founders never intended to have judges elected by popular vote, according to Associated Press legal affairs writer Gene Johnson. They believed it important that judges not have to worry about the popularity of their decisions. It wasn’t until after the populist President Andrew Jackson took office in 1828 that states began to conduct judicial elections.

The appointment system O’Connor proposes wouldn’t entirely insulate Washington judges from political influence or the whims of voters who generally know little about the candidates they elect — or, in this appointment system, the candidates they would retain or reject. Still, a merit-based appointment process would seem an improvement on the judicial election process we have now. We believe the Washington Legislature should give O’Connor’s proposal a serious look when it convenes in January.