A total of 19 lawyers including some sitting judges and at least one former judge applied to Gov. Jay Inslee for appointment to fill a Supreme Court vacancy expected to open May 1. Inslee is likely to make his choice within two weeks.
The vacancy is that of Justice James M. Johnson, the clear conservative of the court’s nine members, who is retiring April 30 citing health problems that limit his ability to work for the near term but won’t end his legal career.
“Unless something changes I would expect by the end of the month or the first week of May,’’ Inslee’s general counsel Nicholas Brown said Monday of the timeline for filling the court position.
Johnson saw himself as an enthusiastic defender of constitutional rights for the individual, and his departure removes the most clearly conservative voice on the court. In the landmark case known as McCleary, he was the lone dissenter on the court’s latest order telling the Legislature to pick up its pace of funding basic education; he argued the court was violating the Constitution’s separation of powers by, in effect, trying to legislate.
It’s almost certain that Inslee, a liberal Democrat and environmentalist, won’t add a right of center lawyer to the court in order. But the governor is said to be considering some diversity – which could include racial, ethnic or geographic factors – in his reckoning.
Brown said in a recent interview that getting strong judicial talent is first.
“You want the person who is going to make the best justice. So you want someone who has the intellect, the general competency, and the commitment to justice. … I think you want someone with a well developed sense of what justice and access to courts is,” he said.
Brown added that the governor wants some record of volunteering with legal work in their communities.
At least three newspapers – including the Seattle Times and papers in Yakima and Spokane – have editorialized in favor of picking a justice from Eastern Washington, getting someone familiar with rural issues to replace Johnson.
Justice Debra Stephens, appointed by former Democratic Gov. Chris Gregoire to serve starting in 2008, had served as appellate judge in the Spokane area and is the lone court member from the east side.
Stephens and two other justices – Charles Johnson and Mary Fairhurst – are running for re-election to six-year terms this fall.
Already, one candidate – retired King County Superior Court judge Bruce Hilyer – says he is running for Justice James Johnson’s unexpired term – and has applied to Inslee for appointment to the seat, the Seattle Times reported. Hilyer ran for Supreme Court in 2012 and finished third.
Whoever Inslee appoints must stand for re-election right away, and that is a secondary factor Inslee must weigh - if he wants to avoid the record of Mike Lowry, who saw appointees to the Supreme Court and Court of Appeals both tossed out by voters.
“This person has to be ready to run an election fairly quickly and that presents challenges,’’ Brown acknowledged. “I don’t think it carries the day. But you need to have someone who not only can do the job but is prepared to defend the job.’’
Johnson leaves the court before he wanted to. He has a blood disorder that is treatable as well as a hip that needs replacing, but he has missed work and says the conditions keep him from giving the court his full attention for the near term.
Johnson told TVW’s Inside Olympia host Austin Jenkins in a segment that aired last week that he was committed to protecting rights for Washingtonians that are spelled out in Article I of the state Constitution. “They are better protections for the rights of individual than even the United States Constitution provides,’’ he said.
Johnson also told TVW that most other members of the court are Democrats. He also spoke of “a one-party court” and said that in his world travels “I’ve never found a one-party state where the rights of the people are fully protected.”
Pushed about his use of the partisan terms, Johnson said: “Name one who is not a Democrat on our court. … Are you fooled? You think that there are people who are conservative on the court after I leave?”