Money means plenty of bias to go around in high court race

When the topic is state Supreme Court Justice Jim Johnson, it doesn’t take long for the initials B-I-A-W to enter the conversation.

The Building Industry Association of Washington is the organization representing homebuilders and remodelers. Both conservative and aggressive, the BIAW feels state regulation is out of control, adding to the price of housing and detracting from the financial health of builders.

Six years ago the organization put its weight and wealth behind Johnson’s election. Outrage resulted. The BIAW was accused of buying a court seat, and Johnson had to step away from the one case when the association was directly involved.

Now, as Johnson faces voters again, his opponents want to paint him as tainted – not just conservative but unethical. It is the centerpiece of Tacoma lawyer Stan Rumbaugh’s effort to unseat Johnson.

Good thing politics and consistency are such bitter enemies, then. Because Johnson’s foes are doing exactly what they accuse Johnson of doing. It is ironic enough to make even cynics roll their eyes.

The conservative Johnson is facing off against the liberal Rumbaugh. Johnson’s business and conservative endorsements and contributions are more than matched by Rumbaugh’s labor and liberal endorsements and contributions.

And the fear that Johnson’s rulings have been influenced by his supporters is matched by the fear that Rumbaugh’s rulings will be predetermined by his.

If you view the Supreme Court as just another political body, this makes perfect sense. Candidates make promises and seek endorsements, and voters vote accordingly.

But the Supreme Court is different. At least it’s supposed to be. Decisions should be made on the law and on how previous cases have been decided. Certainly justices’ backgrounds and core beliefs are going to enter into how they make close calls. Often, however, justices cast votes differently than they might have if they were free to vote their politics.

Johnson has been with the court majority 90 percent of the time. He does tend to side with property rights proponents and to hold government to strict standards when it comes to regulation (less so in criminal matters). He is a reliable protector of open government.

But he sided against same-sex marriage, against the assertion that state government is underfunding schools, against a big public employee union and in favor of limiting the reach of tort claims. That has drawn fire from gay rights organizations, unions, education advocates and state trial lawyers, such as Rumbaugh.

They are free to raise money and go after Johnson even if it does amount to copying what they condemn. But they might not get all they hope for. First, Rumbaugh would be violating existing judicial ethics if he pledges to vote their way on cases.

And a pending rule that could be adopted by the Supreme Court by the end of the year might disqualify him from sitting on cases involving his campaign allies. The rule is based on the 2009 U.S. Supreme Court ruling in Caperton v. Massey that big campaign contributions are grounds for recusal.

The proposed rule would require judges to step aside if a motion is made that points out that a party to the suit has provided substantial financial support to their campaigns.

This won’t just cover direct contributions now limited to $1,600. Independent expenditures are counted too, such as the campaign run by BIAW to help Johnson in the past (though not so far this election) and campaigns to help Rumbaugh this year.

So if Johnson must recuse himself from cases where the BIAW is involved (and some assert even when it files friend-of-the-court briefs), will Rumbaugh have to step aside when abortion rights supporters, trial lawyers, gay rights advocates and labor unions are involved in cases before the court? Probably.

The new rule would be subject to interpretation by the Commission on Judicial Conduct and the court itself. But it could remove the incentive for political special interest groups to try the get their man or woman on the court.

Peter Callaghan: 253-597-8657 peter.callaghan@thenewstribune.com blog.thenewstribune.com/politics