Appeals Court Barbie

Clinton and Gorton strike a deal to promote Chief Justice Barbara Durham, paving the way to a more liberal state supreme court.

AMONG THE HEADLINES we do not expect to see this century are:

"Mariners Improve with Latest Trades"

"City Council Rejects Garage Deal"

"'Nothing Beats a Typewriter'—Gates"

And especially: "Gorton Move Will Liberalize Court"

Yet a momentous leftward shift of the Washington State Supreme Court is a certainty if Republican Sen. Slade Gorton has his way, as expected. Democrats bemoan his deal with the Clinton White House that will elevate conservative state Chief Justice Barbara Durham to a federal courtship, in return for GOP support of Clinton appointees to the US bench. But the trade-off will also open a key state high court position that can be filled by Democratic Gov. Gary Locke. He'll surely pick a liberal in lieu of the moderately Republican Durham, who as chief justice lightly steers the court's theoretic course.

Voters can push the high bench further to port with the November elections. Liberal incumbent Barbara Madsen is seen as a close winner over moderate Jim Bates, and Faith Ireland—backed by Locke—is a slim favorite over enigmatic newcomer Jim (not Tom) Foley, who believes in a sense of humor and the quirks of name familiarity. The outcomes could recast what has become a comparably fractious court of nine rarely meeting minds. "There are justices on that Supreme Court," Bates said during a recent debate, "who have not spoken to each other for the past three years."

But first things first. The Durham appointment could still "drop like a rock," as the state's first female chief justice herself says. Clinton in May agreed to eventually nominate Durham, who turned 56 last week, even though she's critical of "liberal judges," is an erstwhile Dole supporter, and remains a potential US Supreme Court nominee should a Republican retake the White House. The president, word has it, has been preoccupied with his own legal problems, but a White House spokesperson says Durham's official nomination is nonetheless imminent. The move was set in motion last week with full Senate approval of Clinton nominee William Fletcher, a liberal University of California law professor, to the US 9th Circuit Court of Appeals. As part of the deal, Fletcher's mother, former Seattle jurist Betty Fletcher, will move to senior status on the same court. That will open the path for the payoff—Durham's nomination to the prized judge-for-life position. (Also part of the ensuing musical-chairs shift are King County Superior Court Judge Robert Lasnik, moving to the US District Court here, and Perkins Coie attorney Ron Gould, taking a 9th Circuit seat; someone also will be named to replace semi-retiring US District Judge William Dwyer.)

A LIBERAL PUBLIC-INTEREST group, the DC-based Alliance for Justice, calls the Durham deal a Faustian bargain for the Clinton administration. The alliance issued a 13-page critique on Durham's "constricted understanding" of individual rights and the law. Though justices under law are nonpartisan, Durham campaigned as a Republican and political conservative, the group contends. And in an apparent 1996 conflict of interest, she enlisted State Attorney General Christine Gregoire as her campaign co-chair even though Gregoire in person or by representation regularly appears in Durham's court (see "Too Cozy," SW, 7/31/96).

The alliance complains that Durham's court is short on social conscience, citing in particular a questionable 1996 decision to allow sex discrimination at companies with fewer than eight workers. Accepting that arbitrary numerical defense, a majority agreed it wasn't discrimination when a female worker was introduced by her boss to fellow workers as "my new nigger" (he also told her that "every woman needs to be big-dicked"). The Durham court decided it was the man's not-big-enough company that made the comments unactionable.

Durham's unqualified support for capital punishment—in a court known to rubber-stamp death convictions—has the alliance grousing as well (even though Clinton is a fan of the death penalty and as Arkansas governor campaigned for the White House in part by supporting the execution of a mentally retarded killer). Durham's capital-crimes philosophy was highlighted by her support of the King County prosecutor's attempt to try arsonist Martin Pang for murder (see "Justice's Deaf Ear," SW, 8/13/97). A former deputy criminal prosecutor, Durham railed against the Brazilian extradition treaty that precluded murder charges against Pang, whose fire killed four Seattle firefighters. She complained in a minority dissent that "the deaths of four innocent victims will go unpunished" unless Pang is tried (and, it follows, found guilty) on aggravated murder charges. Having lost her argument, she went to the media, essentially urging prosecutors to appeal to the US high court.

To some, Durham was unprofessional; she decided Pang's guilt before trial, and as a sore loser she crossed the line of outside comment. (She also turned out to be wrong: After Pang pleaded guilty to arson he was indeed punished—forever locked away in prison.) Durham chose not to respond to our request for comments about such criticisms, but she did earlier tell the Tacoma News Tribune she now regrets taking her Pang arguments to the media.

The upside for liberals is that the departure of Durham could reposition a court perhaps best known for its conflicting four-opinion rulings: majority, minority, and dissent of the majority and minority. Among the regular feuders are recently re-elected populist Richard Sanders and liberal Phil Talmadge (who is rumored to have quietly aided the failed campaign of Sanders' challenger Greg Canova) and Durham and Barbara Madsen. The Barbs' clashes over court leadership turned personal when Madsen bragged on cable TV that she could have defeated Durham for the chief justice spot if she'd wanted to. Earlier, Madsen, the sometimes acting chief justice, had sent Durham what the chief justice called a "nasty letter" chastising her for not responding to a complaint that the court had become mediocre. More recently, Durham seemed to go out of her way to publicly toss her support to Madsen challenger Bates (but managing in the same breath to add, "I like to stay away from anything that involves politics"). Durham's backing could make an important difference in a close statewide race and the court's final makeup.

"It is very likely to be a more unified, engaging court in January," says a Seattle attorney who has argued before the high justices. "But it won't be as much fun to watch."

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