Peter Callaghan: Supreme Court diversity can be measured in diverse ways

Staff WriterMay 6, 2014 

In most of the press coverage about Gov. Jay Inslee’s first appointment to the Washington state Supreme Court, we learned Mary Yu is female and will become the sixth woman on the current court.

We learned she is the daughter of immigrant parents from China and Mexico.

We learned she is gay, and we learned she is the first openly gay person and first Asian-American justice in the 125 years of the top court.

Mary Yu’s appointment even captures the diversity triple crown because the two Hispanic justices who joined the court before her were men.

What we didn’t learn was much about her judicial temperament, her legal philosophy, whether she has proved to be an activist judge in 14 years on the King County Superior Court. We read little about how she ruled on prominent cases, how her decisions have stood up on appeal, what the lawyers who appear before her think of her fairness and demeanor.

In other words, the appointment of Mary Yu as a Washington Supreme Court justice looked pretty much like the average campaign for Washington Supreme Court justice. By tradition and ethics, most judge races become genteel debates over which candidate has a bigger résumé.

Judges are not supposed to say how they would rule on cases that might come before the court. Many use that as a shield to rebuff questions about just about every legal issue. Court races have opened up a bit in the last decade or so, but that was caused by candidates who emerged from outside the legal establishment.

Gender and race have now joined résumés as the stand-ins for a real campaign discussion.

It was natural, if still a bit unfair, that Judge Yu was defined by her gender, her sexuality and her family background rather than her legal qualifications. But the appointment by Inslee glossed over a bit of diversity that should be just as vital to a nine-member top court: philosophy.

She replaces Justice James Johnson, who resigned for health reasons. With the defeat of Justice Richard Sanders, it was Johnson who has been the lone dissent in some pretty significant cases. He often spoke against governmental power and in favor of open government. And while he wasn’t anywhere near convincing a majority of justices with his call for restraint in how the court will oversee implementation of its school-funding ruling, his point of view is important to the discussion.

“The appointment of Judge Yu brings an admirable level of diversity to the court in terms of her life story, but far too little diversity of opinion and experience,” said Alex Hays, a Tacoma political consultant and the president of the Justice for Washington Foundation. “I’m worried that her appointment ideologically narrows the state Supreme Court.”

Johnson, too, said he thinks the court needs philosophical diversity as well as ethnic and gender diversity.

“The court is still not balanced, does not represent all the people of the state,” Johnson told the Northwest News Network.

Hays and Johnson are correct. But it isn’t Inslee’s job to appoint a conservative just because Johnson is conservative. If people want moderate and conservative justices, they can recruit candidates and promote their campaigns. That’s why Justice for Washington was founded, though with limited success.

Only three of the court’s current nine justices were first appointed, the rest having joined the court by being elected. But it has been 20 years since an appointed justice was defeated when first facing voters. The rest haven’t even been seriously challenged.

At least one candidate appears ready to challenge Yu. Retired King County Superior Court Judge Bruce Hilyer, who ran unsuccessfully two years ago, has filed documents with the Public Disclosure Commission to run for the post. He was a judge for 12 years and twice ran for King County executive as a Democrat.

But if he does challenge Yu, he will be the one running against the establishment choice — at least the Seattle-based legal establishment.

Maybe he could run on a diversity platform. After all, the most-underrepresented group on the court, given their numbers in the general population, is men.

Right, nobody cares.

Peter Callaghan: 253-597-8657 peter.callaghan@ thenewstribune.com @CallaghanPeter

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