Civil Liberties And The Race For Supreme Court: McCloud Vs. Sanders

The race for the open seat on the Washington Supreme Court has drawn two staunch defenders of individual rights. One is former justice Richard Sanders, who hopes to return to the court after losing his seat two years ago. The other is appellate lawyer Sheryl Gordon McCloud. Both are passionate about constitutional issues, and even praise one another’s work. But they cite important differences in their positions and personalities.

Richard Sanders served on the Washington Supreme Court for fifteen years before losing his seat in 2010. During Sanders’ tenure, University of Washington law professor Hugh Spitzer wrote in the publication Crosscut that Sanders brought some intellectual heft to the court. “Sanders is somebody who really likes to think deeply and broadly about Constitutional issues,” Spitzer says. “He’s very interested in history and he does not approach everything in a knee-jerk or traditional way.”

But at this point in his career, Sanders’ name is forever linked to a few controversial incidents from his tenure. One is his outburst at a 2008 gathering of the Federalist Society in Washington D.C., when he shoulted, “Tyrant! You are a tyrant!” at then-Attorney General Michael Mukasey. It’s an episode that Sanders still defends, as he did at a recent forum of the King County Bar Association. “This man had given immunity, virtual immunity, to high governmental officials and others working on their behalf to commit crimes,” Sanders said. “He refused to investigate them, much less prosecute them. That’s the end of the rule of law in the United States of America. And somebody has to stand up and say something. And that’s what I did.”

Sanders was also criticized in 2010 for saying that certain racial groups have higher prison populations because those groups “have a crime problem.” Sanders stands by those comments, but says he’s been vigilant in insuring racial fairness in the courts. Both cite record of defending rights

In one of Sanders’ earliest cases, he says he “stood up for the rights of a young black man who was sentenced to life without the possibility of parole for stealing $300 armed with a finger in his pocket. I thought that was an unconstitutionally cruel punishment. No one on the state Supreme Court during my years had a better record than I did.”

Sanders was also instrumental in passing rules requiring smaller caseloads for public defenders. He says high caseloads in some cities resulted in defenders being ill-prepared and overwhelmed. “[Public defenders] have to have the time and resources to do a good job. And local government was balancing its budget on the backs of indigent criminal defendants because they just didn’t want to adequately fund it, so I thought a way to correct this in a judicial way was to pass a rule.”

McCloud says she has spent her career working for social justice through the court system. “I have over 25 years of experience serving in front of the Washington Supreme Court and other high courts arguing appeals,” she said. She’s also taught at Seattle University and partnered with the ACLU on certain cases. McCloud says one of her proudest moments was a victory last May in which she got inmate Darold Stenson off Washington’s death row. “We found out 15 years after the client had been on death row that the state had hidden evidence that was favorable to him,” McCloud said. “That’s not just my words; that’s actually the words of the judge who first sentenced him to death when we showed him this evidence.”

McCloud also points to one of her earliest cases, a civil case in which she helped defend employment leave for pregnant women.

Prosecutors call both “not qualified”

The Washington Association of Prosecuting Attorneys rated both McCloud and Sanders “not qualified” for the high court. Spitzer isn’t surprised at the prosecutors’ opposition. He says, “I think she has an orientation toward defendants in the criminal justice system that’s a very strong orientation.” Perhaps to address this concern, McCloud’s website prominently displays her endorsement by the Washington State Patrol Troopers Association and individual prosecutors.

Hugh Spitzer at the University of Washington has endorsed McCloud in this race and contributed to her campaign. He says McCloud is experienced and would do a fine job. He says despite his praise for Sanders’ intellect, Sanders’ “temperament” has become a liability: “Sanders does have an ax to grind and he feels strongly about it and he mouths off what his personal views are, and that is generally not appropriate for judges.”

Sanders is a strong advocate for gun and property rights and freedom of religion. He’s also a libertarian who introduced presidential candidate Ron Paul at a campaign event earlier this year. McCloud has kept a lower political profile. She has donated money to candidates besides Sanders, most of them Democrats.

McCloud and Sanders have remained collegial during the campaign. McCloud has pledged money to Sanders’ campaigns in the past. And Sanders has referred to McCloud’s “top quality” legal work. Both say it’s difficult running in a statewide race with little money or fanfare. Sanders recently contributed $95,000 of his own money to buy radio ads leading up to election day.