Two years ago, Richard Sanders lost his seat on the state Supreme Court in an extremely close election, probably due to comments he made late in the race that certain minority groups are overrepresented in the prison population “because they have a crime problem” rather than because of some institutional bias.
As he seeks to return to the court, those words echo. His opponent, longtime appeals lawyer Sheryl Gordon McCloud, offers them as evidence of a poor judicial temperament. Sanders alludes to them too, saying they were misunderstood in a way that cost him his job.
During his time on the court, he argues, no other justice did as much to protect individual rights, whether in the realms of land use or criminal defense.
“To me, at least, it should be a nonissue,” Sanders said. “I was a sitting justice for 15 years. Nobody was a stronger defender of the rights of the accused, no matter what their race was.”
Sanders, 67, of Vashon Island, and McCloud, 57, of Bainbridge Island, are fighting to replace retiring Justice Tom Chambers in the Nov. 6 election.
The pair offer similar philosophies when it comes to constitutional protections of criminal defendants. McCloud has spent the bulk of her career arguing criminal appeals before the state Supreme Court, and Sanders notes that in some of her losing cases, he sided with her in dissent. Recently, McCloud won a new trial for death row inmate Darold Stenson when the court agreed 8-1 that prosecutors withheld evidence favorable to Stenson.
In other ways they differ. Sanders voted in 2006 to uphold Washington’s Defense of Marriage Act prohibiting gay marriage. McCloud has worked on gay rights cases, and she criticizes Sanders for signing Justice Jim Johnson’s concurring opinion, which reasoned that the law did not illegally discriminate against gays because they remained free to marry someone of the opposite sex.
“I know my opponent prides himself for fighting for many constitutional rights,” McCloud said. “My background is fighting for equal rights for all.”
Sanders lauds his experience on the court, his institutional memory, and his background in property rights and tax law. He intimates that McCloud might not always side with citizens against government overreach, and notes that criminal cases constitute only one-third of the court’s work.
“I have an idea where she’s coming from on criminal cases, but what about the rest?” he said.
McCloud, who also has some experience in consumer protection and civil rights cases, tries to distinguish herself by questioning Sanders’ off-the-bench comments and whether he has the right temperament. She notes that in addition to the Democratic Party, she has been endorsed by nine current and former justices, many of whom served with Sanders, and two prominent Republicans, former Gov. John Spellman and former U.S. Attorney Mike McKay.
Sanders has been endorsed by the Republican Party and four current and former justices, including Chambers and Johnson. He has support from gun rights and anti-abortion activists, realtors and the Association of Washington Business.
McCloud and many others argue that blacks and other minorities are disproportionately represented at every stage of the criminal justice system, from the rates at which they are stopped to the rates at which they are referred for prosecution or offered diversion programs to the longer sentences they receive.
Sanders said that whether there’s unbalanced policing in Washington isn’t for him to decide. His job is to make sure everyone who comes before the court gets a fair hearing, he said. The point he was trying to make back in 2010 was that he doesn’t believe the judiciary in Washington is racist, he said.
Sanders points to his record as evidence of his fairness: He voted in one case to require that during jury selection, if prosecutors want to remove the only member of a person’s racial group from the panel, they must demonstrate they’re not doing it for discriminatory reasons. In another, he wrote a lone dissent against Washington’s three-strikes law in the case of a black man who held up an espresso stand with his finger in his pocket, arguing that life without parole in such a case was cruel and unusual.