All Politics Is Local

Liberty and Law

I can't help myself: I like Jim Johnson.

My fondness for the Washington state Supreme Court candidate is, on its face, unreasonable. First of all, Johnson is running against King County Superior Court Judge Michael Spearman, who would almost certainly be an excellent justice, protecting both civil rights and reasonable regulation. (There are also a couple of other candidates for this open seat whom I know less about—Mary Fairhurst and Stan Morse.)

Secondly, Johnson is allied with all of the hard-right activists in the state—and it's not a recent association. In 1973, he started his legal career as then-Attorney General Slade Gorton's designated hit man on Native American tribes. Gorton's legendary enmity for the tribes kept Johnson busy for years as he argued cases up and down the court system on behalf of Skeletor.

Mason Morisset, a lawyer who has been on the opposite side of Johnson for 30 years on tribal cases, hasn't developed a lot of respect for his adversary's legal arguments. Johnson "is a one-liner guy. He can only see one angle. His legal philosophy is ultraconservative property rights."

In private practice since 1993, Johnson's client list reads like something out of the John Birch Society's yellow pages: the Evergreen Freedom Foundation, a group dedicated to privatizing public education; the Building Industry Association of Washington, the bully boys of Olympia who never met a wetland they didn't want to drain and pave over; and Tim Eyman, the lying initiative king.

Johnson actually wrote Initiative 747, Eyman's last tax-slashing initiative, and Eyman's current wretched offering, Initiative 776, that sloppily jumbles together tax cuts and hostility toward Sound Transit. Soon, Johnson hopes to overturn the listing of the Puget Sound chinook under the Endangered Species Act.

This guy is a menace!

Actually, I'm not so sure.

In a Supreme Court justice, I want someone who will guard my freedom. Judges should make sure the state doesn't overreach. My concerns, heightened during this War on Terrorism, are freedom of speech, assembly, association, and political dissent and the rights of criminal defendants. Paradoxically, I also want someone who will allow the state to regulate corporate power to prevent business from despoiling the environment or messing with workers. (The issue of abortion is a whole other column.)

Johnson would almost certainly disagree with me when it comes to property rights and corporate power. But how would he be on civil liberties and criminal law?

We have one libertarian justice on the Supreme Court, Richard Sanders. He has been exemplary in his defense of personal liberty and civil rights, so much so that he has become the darling of the criminal defense bar. He has been very consistent in the application of his libertarianism to property rights and corporate regulations, which has not endeared him to environmentalists and unions. Like with any elected official, there are trade-offs.

So is Johnson like Sanders, or is he more in the vein of U.S. Supreme Court Justice Antonin Scalia—bad on corporate power and worse on civil liberties?

Sanders has no doubt. He's endorsed Johnson because "he loves liberty. He has guts, convictions, and won't give up his legal principles that his fellow citizens should have all the liberties" guaranteed by the Constitution.

In person, Johnson's passion for the state constitution is infectious. He points out that Washingtonians' rights and freedoms are greater than those enshrined in the federal document. He believes that we have four branches of government in our state that provide crucial checks and balances: executive, legislative, and judicial (like the feds), and then Washington's constitution adds the rights of initiative, recall, and referendum—important powers vested in the people. He stresses that he spent years defending the initiative process.

He gives a mixed response on civil liberties. He doesn't have a legal history to examine on either civil rights or criminal defense. Opponent Morisset says, "How many civil rights cases has he brought? Not one."

Johnson says that he and Sanders "would have some differences on criminal justice issues. There is still a middle place of balancing" in criminal law. "You have to show a meticulous care for the enforcement of rights in the legal process," he says; but "there are some real bad people that have to be kept away from the public." He feels Sanders has been too hard on laws like "three strikes" and the confinement of sex offenders for treatment after they have served their prison terms. He feels that there are situations where "the risk of recidivism is such that incarceration should be long term or even lifetime."

It is always hard to predict how a judge will perform on the bench. The elder George Bush probably isn't too happy with Justice David Souter, although Clarence Thomas must warm his heart. What makes choosing a judge even more vexing is that our usual yardsticks for determining our votes—liberal and conservative, Democrat and Republican—don't easily translate from the political to the judicial realm.

comments powered by Disqus

Friends to Follow