Our tortured pick for state Supreme Court: Sanders

October 22, 2012 — We would have preferred a different choice for the state Supreme Court.

Four candidates entered the race for the seat Justice Tom Chambers is leaving. Either of the two eliminated in the primary – former Pierce County Executive John Ladenburg and Judge Bruce Hilyer of King County – would have been better than the two who wound up in November's runoff.

Not that we don't like Richard Sanders and Sheryl Gordon McCloud. Each is highly intelligent and devoted to the law. It comes down to the role of the judiciary. Either McCloud or Sanders would bring a settled ideological agenda to the cases that reach the high court.

Sanders is a doctrinaire libertarian. McCloud is what used to be called a flaming liberal. Passionate political beliefs keep the fires of democracy burning, but good court decisions aren’t born in furnaces. Sanders and McCloud both appear likely to equate their personal philosophies with constitutional dictates.

Sanders has already shown his penchant for reading cases through his libertarian prism. In disputes between the individual and the public, his reflex – reflex – is to take the side of the individual.

Siding with the individual is often the right thing to do, but not always. In the 15 years he spent on the court before losing a re-election bid in 2010, Sanders seemed overly eager to overturn criminal convictions and smack down reasonable government efforts to protect the public interest.

This is a matter of degree and temperament. Every judge brings a personal approach to the law, but sometimes the law is bigger than the judge. We don’t think Sanders gets this.

Unfortunately, we have precisely the same concerns about McCloud.

Her passion is criminal defense. She’s spent much of her long career battling death penalties and fighting for what she calls "social justice constitutional rights." Attorneys like McCloud are absolutely essential to our criminal justice system; courts can become lynching parties if due process and effective defenders aren’t provided for everyone – even depraved killers.

The problem is, McCloud’s advocacy doesn’t appear to have an off switch. If she were gowned in black, we don’t think she’d be any more impartial than Sanders.

The question: Which of the two would add more to the court?

The Supreme Court is already dominated by justices with moderate liberal leanings; McCloud would likely slide immediately into its left-most seat and make the orthodoxy more orthodox.

Sanders' chief contribution over the years has been to challenge his colleagues and force them to confront issues they might otherwise have ignored. A contrarian justice can sharpen his colleagues' thinking even when he's wrong.

We wouldn't want five like Sanders on the court, or even two. But given this choice, we'll go for one.