Jessica M. Karmasek Mar. 15, 2013, 2:00pm

OLYMPIA, Wash. (Legal Newsline) -- A leading legal analyst says a bill that would cut the number of justices on the Washington Supreme Court threatens the court's "judicial independence."

In an analysis published last week, Brennan Center for Justice fellow Andrew Cohen contends the language of the proposed measure -- Senate Bill 5867 -- "makes it clear" that state lawmakers who endorse it are using it "to try to punish" the court for "performing its requisite check upon political power."

Cohen, who is a contributing editor at The Atlantic, legal analyst for 60 Minutes and also chief analyst and legal editor for CBS Radio News, writes that the "fundamental premise" behind judicial independence -- that judges should be as free as possible from political pressure -- is "imperative in fostering public confidence in the judiciary."

Earlier this month, state Sen. Michael Baumgartner, R-Spokane, introduced SB 5867 in hopes of returning the state's high court to the "makeup mandated in the state constitution" -- five justices, instead of the current nine.

"Many people don't realize that our state's constitution mandated that only five justices serve the Supreme Court," Baumgartner explained.

"Over the past century, the Legislature has added justices to give us a nine-justice panel."

Baumgartner, who suggests the current justices draw lots to decide who stays and who goes, pointed out that after salary increases go into effect this September, Supreme Court justices will be the highest-paid elected officials in the state at more than $167,000 a year.

Eliminating four positions on the bench could save between $1.5 million to $2 million a year in salary and administrative costs, he said.

"Every dollar we save by eliminating these four positions would be automatically funneled to K-12 education to help meet the guidelines the Supreme Court laid out in the McCleary (v. State) decision," Baumgartner said, referring to the court's unanimous ruling last year that the Legislature's funding of education was constitutionally lacking.

"Two million dollars a year can go a long way to funding schools, paying teachers and preparing kids for college."

Baumgartner noted that the court has expressed "discomfort" in adding to the requirements of clear constitutional mandates.

"The constitution clearly says that the Supreme Court shall consist of five judges," the senator said.

"Based on their recent rulings on McCleary and their rationale behind the decision to throw out the will of the people regarding the two-thirds tax rule, I expect that the court will support this approach.

"Of course, if the justices do disagree, nothing in my bill precludes them from coming before the Legislature and the people to attempt to amend the constitution."

In a 6-3 ruling late last month, the court struck down an initiative requiring a two-thirds vote of the Legislature for tax increases. The court said in its opinion that the requirement could not be enacted without a constitutional amendment.

"Apart from whatever separations of power concerns it may raise, one of the structural problems with Sen. Baumgartner's measure is that it fundamentally misreads the nature of the Washington Supreme Court's ruling in the education case it cites, McCleary v. State," Cohen wrote.

Alicia Bannon, counsel in the Brennan Center's Democracy Program, argues that McCleary was a "mainstream decision that falls well within traditional judicial power to interpret state constitutions and require the political branches to fulfill their constitutional obligations."

Bannon -- as Cohen notes in his analysis -- points out that the court's ruling in the McCleary case is entirely consistent with the rulings of other state supreme courts in cases involving education funding.

"Nor can Sen. Baumgartner argue, with a straight face, that last week's tax ruling, which precludes the extraordinary remedy of a super-majority vote, is an outlier as a matter of constitutional law," Cohen wrote in his March 8 analysis.

"There is significant legal precedent in many other states for the proposition that courts may not easily tweak the democratic process so as to end the concept of 'simple majority' rule. And the proper remedy, of course, would be to seek judicial review of the state court ruling at the United States Supreme Court."

Cohen said it's "hard to gauge" how serious Baumgartner is about SB 5867 -- "whether he simply wants to score political points with his constituents about what he perceives to be 'judicial activism' or whether he really wants to gut the state supreme court in this fashion."

"But what is clear is that his proposed bill is part of a new generation of efforts by state lawmakers to check the authority of the judiciary by either reducing or expanding the number of state supreme court justices," Cohen wrote.

The legal analyst argues that the measure threatens judicial independence not just because of the motives behind it but because of the message it sends to litigants, citizens and, most of all, judges.

"To the justices in Olympia, Washington, the message of the 'court unpacking plan' is clear: if you render decisions which are unpopular, or which are at least unpopular along a particular portion of the political spectrum, you may lose your job and, worse, the cherished institution for which you work may lose its freedom to issue rulings without fear or favor, even when those rulings deprive powerful political forces of the victories they seek," Cohen wrote.

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