Wednesday, July 30, 2008 — When you go through her campaign materials, one thing certainly stands out about state Supreme Court Justice Mary Fairhurst: She comes highly recommended for re-election to a second six-year term on the state's highest court.

She is opposed by Michael Bond, a Seattle attorney.

Six of the nine current justices (all but Richard Sanders and Jim Johnson) and six who have retired from the high court are listed on her campaign Web site as supporting her. So is Democratic Gov. Chris Gregoire and former governors Gary Locke and Albert D. Rosellini, both Democrats, and John Spellman, a Republican.

Suffice it to say, her list of supporters is long and impressive.

That said, we point out that we've been around the campaign block a few times and realize that incumbents have all kinds of built-in advantages, not the least of which is the fact people like to back a winner.

But we're not going to just jump on the bandwagon. After our joint editorial board interview with the two candidates and considerable discussion among ourselves, we'll give a slight nod to Fairhurst for a second term.

We have taken exception to her positions on some recent Supreme Court rulings and found Bond to be a credible candidate, certainly no extremist. But the challenger -- whose only judicial experience as such appears to be as a judge advocate in the Marine Corps from 1975 to 1982 -- simply does not make a strong enough case for unseating a sitting justice.

Fairhurst's experience and the intellect she brings to the court cannot be dismissed. Nor can her consistently high qualification ratings by attorney organizations be ignored.

Something that appeared to come through as she defended her record was that, as a member of the high court, she feels she rules on the law as it is, not as someone thinks it should be. But given several 5-4 rulings by the court in the past six years, obviously what the law says or how it is measured against constitutional muster is open to interpretation. And we don't always agree with Fairhurst's interpretation.

The Seattle Times compiled a list of 17 decisions involving government agencies and found the incumbent siding with government 15 times -- or 88 percent of the time. Of course, that's not always a bad thing, although it brings to mind the fact that before she joined the court she was an assistant state attorney general -- a government lawyer -- for 16 years.

In Hangartner v. City of Seattle, the issue before the court was withholding documents from citizens, citing attorney-client privilege. The court ruled 5-4 in favor of the public agency. Fairhurst sided with the public agency.

Another high-profile public records case, Soter v. Cowles Publishing Co., involved a schoolboy allergic to peanuts who died after eating a school lunch containing peanut products. The Spokesman-Review newspaper demanded to see results of the investigation and the Spokane School District refused. The court ruled 5-4 in favor of the school district, again citing attorney-client privilege, with Fairhurst again in the majority.

Both, in our view, represented unjustified narrowing of the state Public Records Law through expansion of attorney-client privilege. And both were 5-4 rulings, revealing a badly split court.

Realistically, Fairhurst would have to be viewed as a heavy favorite for re-election. We're not going to buck that trend. But we do think the incumbent should be aware of the uneasiness with her continual support of narrowly held high-court rulings that seemingly go against the principle of openness in government.

The public's right to know is a pretty basic thing with us. We'd like to see more attention paid to it by Fairhurst during the incumbent's second term.