Washington Law Review


Tom C. Clark


Mr. Justice Holmes once said that "one may criticize even what one reveres." With this caveat I shall proceed to offer some critical comments concerning the Washington judicial structure, its proliferation, its inefficiencies of operation and its methods of selecting and disciplining judges. I am well aware of Mr. Justice Brewer's observation that "many criticisms may be, like their authors, devoid of good taste." However, I shall endeavor to escape this categorization, remembering instead that "better all sorts of criticism than no criticism at all." Indeed, it is "open season" on the courts these days. As Mr. Justice Story reminds us, critics find it much "easier to point out defects than to devise remedies; to touch blemishes than to extract them; to demolish an edifice than to erect a convenient substitute." It is my sincere purpose to be constructive, drawing my conclusions from my service in both the appellate and trial courts of the federal system and a quarter of a century of close contact with the courts of many states. At the outset let me stress that my reverence for the courts and for the judges knows no boundaries. In my view, both have made great progress under the most difficult circumstances. Indeed, in Washington the effort to modernize goes back almost half a century to the creation of the Washington Judicial Council. Since that time the Council has sparked many improvements, such as the integration of the Bar, the adoption of the federal rules of procedure, the establishment of the Office of Court Administrator and the creation of an intermediate court of appeals. It is submitted, however, that the Council has not faced up to some of the basic needs of the state's judicial system. As a consequence, like most of its sister states, Washington still has an antiquated judicial structure, an unmanageable court system, an ineffectual judicial selection method and a hollow disciplinary procedure.

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