We sat down for coffee with Gonzalez to talk about the campaign, the judicial system, and justice itself. Here are some of the highlights:
On his judicial philosophy:
Your approach is that you presume that a law that’s been passed, either by initiative or by the Legislature, is constitutional.
You’re first looking to find a way to construe [it] so that it is valid and constitutional. But you don’t do violence to the constitution in order to reach that conclusion. You have to do so within reason. … Sometimes that means part of the law is valid and part of it isn’t, and you find the smallest possible part that isn’t.
On why he’s careful answering “Who’s your favorite U.S. Supreme Court Justice?” questions:
The problem with this question is that it’s often an effort to get at political views. And I’ll say why: Our U.S. Supreme Court has become so politicized that who appointed you, and the party of the appointed president, becomes a proxy for that person’s politics. And so if I choose one, it is in many ways is a political statement. I’d rather not make more political than is necessary the state Supreme Court. …
Justice Stevens, who just retired, I think is funny, engaging and interesting. I enjoy hearing him speak. Justice Sandra Day O’Connor came out to speak earlier on whether justices should be appointed or elected. … I found her remarks interesting and thought-provoking, and I enjoyed that.
On whether judges should be appointed or elected:
I guess I’ll have a firmer opinion after the election on that. I think that there are benefits to both systems. I probably tend more toward the appointment than the election — that said, not just any appointment system is OK. It has to be one that is crafted carefully for those same concerns about influence and exclusivity.
On why campaigning for judicial elections is so tricky:
It’s hard to talk about judicial races, which is one of the problems of electing us. We are not politicians in the traditional sense. We’re not making campaign promises on how we’ll rule on particular cases. If we make those promises, we are precluded from hearing [cases about] them. That makes it difficult. It’s hard for the public, because they want to hear who you are and what you stand for, yet you can’t answer those types of questions.---
On how voters can make the right choice when voting on judges:
You read what your editorial board has said about the candidate. Not just one editorial board. You want to look at different papers, because they’re going to have different perspectives, to see what they said and why they’ve said it. People will want to look to the bar association. …
There’s a website called votingforjudges.org. I don’t know if they’ve updated their information yet, but they try not to take sides but to simply provide information on candidates.On how Washington state’s legal system needs to improve:
One project I’ve been working on and feel strongly about is simplifying Family Law forms. … They’re too long, they’re too complicated, they’re hard to understand. ... On the Access to Justice board, one of my projects was trying to translate the court forms into plain language and convince the court to adopt them. I think we’re going to find success with this effort.
The other thing we need to do is stop imposing additional user fees on people that have to go to court. I believe they are a barrier to accessing justice. We should do a better job of educating the public on judicial races and the importance of them.
On what makes a bad state Supreme Court justice:
Somebody who didn’t do the reading, who approached it from the ideology instead of the case, the facts in the law that apply. Who would be abrupt or impatient with the litigants. Who didn’t take seriously the other part of the job — that is, the part where, apart from deciding cases, the part where you’re leading the judicial branch of government and speaking to the public and educating the public about the role of the judicial branch.On where America’s adversarial justice system creates problems:
I’m not convinced the adversarial system is the best way to approach juvenile justice cases, mental health cases, drug-addiction, or even family law.
Those are areas that are not necessarily well-suited to adversarial justice.
There are diversion programs in the drug-offender context, where it’s a nonviolent crime that involves drug use, providing treatment alternatives instead, where someone is able to get clean and sober. They get treatment instead of jail time. I think that benefits everyone.
Prison and jail is good for no one and costs the public money. Having someone come out still addicted just means they’re more likely to commit more crime. That’s one example in how we can use treatment as an alternative that has a beneficial effect. In the family law context, when there are children involved, conflict is not good for parenting.
If we’re increasing the amount of conflict because of the process itself, it’s detrimental to the children in the family unit. It’s a sad thing when a marriage ends, but they do sometimes. If they do, the goal is to make sure that both parents, if possible, can continue to be good parents to the children. To the extent we can minimize the conflict, we’re benefiting society.
What he says to voters who ask about his views on the death penalty:
The death penalty is very final.
I really have to say that I’ve taken an oath and affirmation to uphold the law. Currently, the death penalty is the law. What we all promise to do is hear the facts of a given case and apply them to law as it is and make the best decision we can.
I do know how seriously the justices take these cases. ... It’s just evident from the body language how weighty those matters are. You get a sense of the gravity and the seriousness of what they’ve been considering.On whether corporations are people, my friend:
I saw a funny interview. Stephen Colbert interviewed former Justice Stevens about it, Justice Stevens picked up a glass of water, and said a corporation can’t drink a glass of water.
One is corporeal, one has a body, and the other only exists on paper. ... Both can go bankrupt. But only one can vote, that’s a big difference.
The definition of each and the rights of each are something generally set on the confines of what the legislature allows, not the court. We’re not the one that sets those.
On the best and worst decisions the U.S. Supreme Court has ever made:
The Korematsu decision [about Japanese internment.] The internment cases where we made a mistake, we found that that internment of Japanese-Americans was authorized, even though there was no evidence whatsoever to show there was a threat. But we learned from that mistake, and we corrected it.
That is both the example of the worst and the best. The worst because we ignored liberty and the fundamentals of the Constitution. We let our fear overcome the better part of ourselves in that case. [But it was the best] because we overturned it, eventually, and realized it was wrong and were courageous enough to say so.
When should precedent be overturned?
Respect for precedent is fundamental to the functioning of the legal system.
If they change every time the composition of the court changes, we don’t provide that predictability, which is one of the key benefits of precedent. Prior decisions must be respected unless they’re harmful and clearly wrong. They have to be both wrong and harmful before they get overturned.