High Court Hypocrite
Washington State Supreme Court justice Richard B. Sanders describes himself as a defender of civil rights and civil liberties even though he’s anti-choice, was “not a fan” of Martin Luther King Jr., once showed up at a party in a Nazi uniform, and in 2006, signed an opinion denying marriage equality to gay couples—because they have “more sexual partners” and because other courts have found that monogamy is “the bedrock upon which our culture is built.” Meanwhile, he’s been divorced twice, and this election season it became clear he has multiple simultaneous girlfriends. He doesn’t see anything inconsistent in any of that.
photo courtesy of the washington state supreme court
In the spring of this year, Washington State Supreme Court justice Richard B. Sanders paid a visit to a meeting of the 43rd District Democrats, held at the University Heights Center. The occasion was a panel discussion on marijuana laws. As he does at almost every gathering of liberals he attends, Justice Sanders spoke about his proud dissent in the 1997 case of Ralph Seeley, a man who had been diagnosed with terminal bone cancer and had just a fraction of one lung left after numerous surgeries. Justice Sanders, alone among his eight colleagues on the supreme court, held that Seeley had a constitutional right to smoke marijuana to ease the discomfort associated with his chemotherapy and radiation treatments. "From the perspective of one writhing in nausea on the tiled floor of an oncological recovery room," Justice Sanders wrote, "the state's justifications to withhold the blessings of relief are more sophomoric than substantive." On his office wall at the Temple of Justice in Olympia, Justice Sanders, a 65-year-old self-described libertarian, keeps a framed thank-you letter from Seeley, whom he uses as proof of his often-repeated promise "to protect the rights of all the citizens of this state, all of the time."
One of the people in the crowd at the panel discussion was Michael J. Maddux, a 29-year-old paralegal at a downtown law firm. As vice chair of events for the 43rd District Democrats, Maddux had helped organize the evening and, after it was over, went up to Justice Sanders and thanked him for driving all the way up from Olympia. According to Maddux, Justice Sanders replied: "Well, it's not a big deal—my girlfriend lives in Wallingford. I'm just staying over with her tonight."
When Maddux ran into Justice Sanders a few months later at the state Democratic Party convention in Vancouver, Washington, he walked up to say hello to Justice Sanders and the woman he was with. "This is my girlfriend," Justice Sanders said.
Maddux shook her hand and said, "How's Wallingford?"
She replied, "I'm in Bellevue."
An awkward moment passed.
The next day at the convention, Maddux ran into the girlfriend again and she gave him a card that identified her as "campaign coordinator" for Justice Sanders's reelection effort. Then, according to Maddux, she said something like: "I know that yesterday was a little awkward when you asked me if I live in Wallingford. I just want to let you know that I live in Bellevue, but his other girlfriend lives in Wallingford." Maddux recounted, "Then she explains to me how there's Bellevue girlfriend, and sometimes the Wallingford girlfriend will go with him to events, but she doesn't really like political events, but Bellevue girlfriend does like political events, plus she works on his campaign, so more often Bellevue girlfriend and him, they go to events."
Maddux added, "They both know about each other, Bellevue girlfriend and Wallingford girlfriend. I was like, 'Wow, he's a fucking player.'"
A few months later—August 17, primary-election night—Justice Sanders sipped a glass of red wine in a crowded kitchen in Wallingford while a party swirled around him. As often as possible without being rude to his guests, he stepped over to a computer to refresh the primary-election results. If he could get above 50 percent of the vote, he would be done with this, his fourth campaign, and assured of six more years in a high court tenure that began in December 1995.
Justice Sanders—white hair, white mustache, a face that reddens easily—liked what he saw on the computer in the kitchen: He led by a significant margin. It was a good showing, though not good enough that he could formally call the seat his. He wasn't over the 50 percent threshold. He and the second-place finisher, former court of appeals judge Charlie Wiggins, who ended up earning 40 percent of the vote to Justice Sanders's 47 percent, would face off in November.
No matter. It was still a first-place finish, and it was still a party. Justice Sanders stood up from the computer, looking relaxed and jovial in a purple polo shirt and slacks, and made the rounds of his friends and supporters, one of whom stood in the kitchen and sang "The Star-Spangled Banner" to mark the occasion.
The home was immense and decorated with handmade tribal masks, mahogany trim, and, on the living room table, two well-polished curios identified as walrus penis bones. The owner of the house: the Wallingford girlfriend, whom Justice Sanders has been with for nine years. She held a can of Bud and laughingly described herself to a reporter as "his long-suffering girlfriend... and feel free to say long-suffering." She did not elaborate.
Nearby was Justice Sanders's other girlfriend, the Bellevue girlfriend, whom he personally swore into the practice of law in 1998 and then (as part of a unanimous supreme court determination) disbarred in 2004 after she was found to have misappropriated—to herself—more than $12,000 in client funds. Some years later, he got to know her much better. Now she works on his reelection campaign—though she hands out business cards saying "campaign coordinator," Justice Sanders says she's a volunteer who "passes out yard signs" and that "she made up the card herself."
Also nearby: Justice Sanders's second ex-wife, Kathleen Sanders, a lawyer who helped finance his early campaigns for the high court, still gives him money for his races (though much less than she used to: only $100 so far for this cycle), and wants to see him win even if she doesn't agree with some of his stands, including his 2006 state supreme court vote against same-sex marriage.
In that case, Justice Sanders upheld a 1998 law that bans same-sex marriage in Washington State. Siding with a 5–4 majority, he signed an opinion that said limiting marriage to heterosexual couples is a legitimate state interest because of "the unique and binary biological nature of marriage and its exclusive link with procreation and responsible child rearing." The opinion dismissed "special interests loudly advocating the latest political correctness" and approvingly quoted from a federal court ruling stating that "monogamy is inextricably woven into the fabric of our society" and is "the bedrock upon which our culture is built." The opinion also said that homosexual homes are unsuitable places to raise children because "studies show an average shorter term commitment and more sexual partners for same-sex couples" and "less stable homes equate to higher welfare and other burdens on the state."
At the time Justice Sanders signed that opinion, according to court records, he had already been through two divorces, the second of which occurred when his only child, Laura, whom he had with Kathleen, was just 14. That means Laura spent formative adolescent years outside the context of a one-man-one-woman marriage made up of her biological parents—in other words, in an environment poorly suited to the responsible raising of children, according to the opinion Justice Sanders signed. Nevertheless, the experience seems not to have turned his daughter into a drain on society. Quite the contrary: "She's probably proof in the other direction," said Kathleen Sanders, reached by phone a few weeks after the party. "She's just the most kind, caring person you could ever meet." Laura, according to Justice Sanders's official biography, is "a 2009 summa cum laude graduate of the University of San Francisco."
Such is the complicated world of Richard B. Sanders, high court justice, proud father, ex-husband twice over, simultaneous dater of multiple women, and, as his supporters described it in a fundraising mailer earlier this year, "the deciding vote in a 5–4 decision that upheld the traditional marriage law in Washington."
It is, in some ways, a familiar world: Everyone's personal life is complicated, and fairy-tale relationships are, well, fairy tales. But in this respect, his world is unique: Justice Sanders is a public figure whose decisions affect the lives of all Washington citizens. He's considered more than 2,000 cases and written more than 570 opinions on subjects ranging from parental rights to religious freedom to the limits of stalking. He is a devout Catholic—in a recent interview with The Stranger, he called his Catholicism "the true faith"—and when asked how he squares his personal life with his religion, he answered: "You want to say that I'm a sinner? I'd admit to that." He believes that polygamists have a case for marriage rights under the state constitution, even though he also believes homosexual couples don't. And the disbarred lawyer, one of his two girlfriends? According to her business card, she coordinates Friends of Justice Sanders, the group that sent out the fundraising mailer praising his defense of "traditional marriage."
During his first successful run for state supreme court in 1995, Justice Sanders, the self-described libertarian and champion of individual rights, drove around with a pro-life bumper sticker on his Mercedes. (Suggesting, perhaps, that his defense of individual liberty sometimes ends where his Catholicism begins.) His second ex-wife, Kathleen, filed for divorce in April of 2000, alleging, in more than 400 pages of King County court records, that their marriage had been "irretrievably broken" by "continued infidelity and unkept promises" on the part of Justice Sanders. (Suggesting, perhaps, that his Catholicism sometimes ends where his physical desires begin.) In the interview a few weeks after Justice Sanders's primary-night party, Kathleen Sanders said his alleged marital infidelity occurred while she was battling breast cancer, and that Justice Sanders's affair was with "somebody at the supreme court." (Suggesting, perhaps, a lack of good judgment.) Friends and former law clerks could shed no light on the matter. Asked if his second ex-wife's allegation of a marriage-ending affair with a coworker at the supreme court is true, Justice Sanders said: "I don't have any comment on my personal life."
Justice Sanders knows that scrutiny comes with his position, and he understands the strong feelings about his decision in the same-sex marriage case. "Look, it was a controversial case," he said in a two-hour telephone interview on September 24. "If you come out on the short side of a 5–4 decision on same-sex marriage, people are going to be upset."
But he sees no connection between the language of the opinion he signed and the way he conducts his personal life. His decision was about the law, he said, and nothing else. "This is not a statement of my personal opinions," he said of the opinion he signed. "My personal opinion is that there are some pretty lousy heterosexual couples when it comes to parenting, and there are probably some very good gay couples in parenting. I think it depends on the individuals." What about same-sex marriage? "I don't support it, I don't oppose it—I don't care," he said. "It's not my issue, you know." His issue, he said, was the letter of the state constitution and the limited role of the court system. "I can't force this down people's throats through the courts," he said. "It's a legislative matter. That's all."
That's not quite all, though.
While he now casts his feelings about homosexual relationships as being neutral to moderate, the opinion that Justice Sanders signed in 2006 is full of disparagements of homosexual couples stated as if they are facts. Justice Barbara Madsen, who led the court's majority against same-sex marriage, had to keep company with this opinion in order to get to five votes, but she and two other justices signed a different opinion (which Madsen wrote) that explained almost apologetically how legal precedent, as they saw it, prohibited them from legalizing same-sex marriage in Washington State. Justice Madsen also felt compelled to address the offensive tone of the opinion that Justice Sanders signed, writing that it was "particularly inappropriate," that it "ignores the proper standards," and that it "recites as if embodying unassailable truths" studies that it had no business validating.
This "inappropriate" opinion was written by Justice James Johnson, another member of the majority. (At this year's state Republican Party convention, Justice Johnson was introduced by a former conservative radio talk-show host as one of "the two conservative cornerstones of the state supreme court." The other? Justice Sanders.) Justice Johnson's opinion concurred with Justice Madsen's "in judgment only," and set out to make a different point, beginning by declaring "the unique and binary biological nature of marriage and its exclusive link with procreation and responsible child rearing" and going on to discuss "the current state of scientific findings," among them: The average lesbian union lasts only 4.9 years and the average gay male union only 6.9 years, while the average heterosexual union lasts 20 years. These "scientific findings" were sourced to a promoter of ex-gay therapy and are widely considered dubious. Still, it's worth noting that neither of Justice Sanders's own marriages lasted as long as the supposed average duration for heterosexual unions cited in this opinion. His first marriage lasted just over two years.
Even though Justice Sanders declared with his signature that he concurred with Justice Johnson's take on the case, he now, in the midst of his reelection campaign, doesn't offer a clear answer for the simple question: Why? He said in an interview that he signed because he was mostly interested in supporting a constitutional analysis that appears in one discrete section, a section relatively free of disparagement of homosexuals. But he also acknowledged that it's standard practice for justices, if they want to agree with only one discrete part of a decision and not others, to issue what's called a "concurrence in part." Justice Sanders has done this on numerous occasions over the years and had plenty of time to do so during the 17 months of deliberation on the same-sex marriage case.
Justice Sanders said he knew that the court's decision marked a historic moment, that the case was being watched closely by the public and the media, and that other justices, in both the majority and minority, were taking pains to make their individual viewpoints clear. Then–chief justice Gerry Alexander, for example, not only signed the lead majority opinion but also added a few hundred words of his own in a concurrence that seemed intended to speak directly to gay and lesbian couples, reminding them that his ruling didn't preclude them from gaining marriage rights by other means. Then-justice Bobbe Bridge, in another example, not only signed the lead dissent but also wrote a separate dissent, the conclusion of which seemed intended to make sure the majority understood the "deeply saddening" impact of what it had done. "Future generations of justices on this court and future generations of Washingtonians will undoubtedly look back on our holding today with regret and even shame," she wrote.
For Justice Sanders to have written his own separate concurrence would have been in keeping with the historical moment and would have required minimal effort on his part—potentially as little effort as writing one sentence explaining which specific bit of constitutional analysis by Justice Johnson he concurred with. On the campaign trail, Justice Sanders brags that he is one of the court's "most prolific" writers of opinions, someone who is not at all shy about stating when his views differ in whole, or in part, from those of his colleagues. ("I think I hold the record for dissenting opinions," he told the state Republican Party convention earlier this year.)
He would clearly like to distance himself from the language of the opinion he signed in the same-sex marriage case, but when pressed, he said he actually has no substantive disagreement with the arguments it contains.
"I signed Jim Johnson's opinion," Justice Sanders said. "You can hold me responsible for it. There's no doubt about that. I stand behind it."
The 2006 same-sex marriage opinion was not the first time that Justice Sanders pushed back against a growing civil rights movement.
He was born on May 24, 1945, and raised in Burien, the only child of a father who designed Boeing airplanes and a mother who worked as a public-school Spanish teacher. "When I was growing up, they were growing left," he said of their politics. His own politics were a different matter. He graduated from Highline High School in 1963, where he played French horn and was the president of the debate club. "He liked nothing better than a good argument," reads the caption accompanying his senior yearbook photo, and even before that caption was written, he knew that he wanted to be a lawyer. "I enjoyed debate, and I thought, well, maybe I can get paid for this," he said. He majored in political science at the University of Washington and then, after graduating, went directly to the UW Law School, where in his second year he began writing a column for the UW Daily called The Devil's Advocate.
It was a provocative column, to put it mildly. While other students were protesting the Vietnam War, marching in support of the civil rights movement, and boycotting grapes in solidarity with striking migrant workers in the Yakima Valley and California, the young Richard Sanders, then in his early 20s, found it all a bit absurd. In the pages of the Daily, he swung hard against what he called the "political correctness" of the era, writing, for example, in a column published on January 16, 1969, that the "real reason" for the grape boycott was not solidarity with migrant workers but a scheme "to force the workers to accept a union they don't want," and that California grape pickers were doing just fine without a union because they "receive compensation far above that required by Congress ($1.15 per hour)."
That column drew a rebuttal a few days later from another young law student, Tom Chambers, who, as it happens, now sits on the state supreme court with Justice Sanders. "Mr. Richard Sanders," wrote Chambers, "demonstrated a complete lack of understanding of migrant workers and their problems." With more than a bit of backhanded empathy, Chambers added: "It is possible that Mr. Sanders really believes that migrants are a happy lot—after all, many Southerners believed that black people liked being slaves."
On April 10, 1968, six days after the assassination of Dr. Martin Luther King Jr., the young Richard Sanders wrote that the death of the civil rights hero and Nobel Peace Prize winner "looks like suicide to me." He continued:
"He that sows the wind," the Bible says, "shall reap the whirlwind." Dr. King sowed that wind every time he disobeyed a law and said he was right in doing it. Sure, he spent some time in jail, but the moral victory was always his. He set himself above the law and encouraged others to do the same. They did.
Justice Sanders still stands by much of that column today, though he says he wouldn't write it the same way now. In our interview, summarizing how he once felt about Dr. King, Justice Sanders said: "I was not a fan." He then added: "We all grow in understanding, hopefully, over the years... My attitude today is that I'm very, very supportive of civil rights and civil liberties, and I do what I can to advance them. I think when I was in college, I was less so." His general political philosophy, too, has changed, he said. "If you want to put this on a right–left spectrum, I think I was much more the political conservative in college, whereas I'm the libertarian today."
Still, there is a strong echo between his 2006 frustration with "special interests loudly advocating the latest political correctness" on behalf of gay families in the high court hearing room and his 1968 frustration with Dr. King and the civil rights protesters marching in the streets. "Prior to the passage of every civil rights bill for the last several years had been the spectre of the 'long, hot summer,'" the young Richard Sanders lamented in his column. "The bills were passed and violence erupted just the same." His point, in 1968 and in 2006, was that laws should not be changed under heated pressure or because of some new "political correctness," but only after wise deliberation. If that sounds callously remote to people who are marching and picketing and suffering under unjust laws, so be it. That's the way our system works. The law is the law, and it will not be steamrollered. It will be patiently interpreted and invalidated, if need be, in the quiet, private chambers of high courts—by people like Richard B. Sanders.
While he was learning the law and writing his Devil's Advocate columns, the young Richard Sanders was also living out his first marriage. Records in Pierce County show that he married a woman named Judith in December of 1967, when he was 22. He filed for divorce two years later, alleging that Judith "has been guilty of personal indignities directed toward the plaintiff, rendering his home life burdensome, so that these parties can no longer live together as husband and wife." He suggested that she keep her "household goods and furnishings" and "one 1969 Opal automobile," while he would keep "a Dodge automobile, certain funds in the bank, a boat, motor and trailer, and stock worth about $300." Judith, who is now deceased, did not show up at the divorce proceedings or otherwise contest them. In March of 1970, Sanders was granted his first divorce, with blame assigned—this was the era of "fault" divorce, as opposed to the current era of "no-fault" divorce—to Judith.
As it happens, Justice Sanders's life has produced divorces on both sides of the fault/no-fault divide (his second divorce, completed in the summer of 2001, was of the no-fault variety). In a way, this detail dovetails with one of the arguments for legalizing same-sex marriage. As San Francisco federal judge Vaughn R. Walker noted in his August ruling invalidating California's Proposition 8, which Judge Walker found to have unconstitutionally limited marriage to one man and one woman, "the development of no-fault divorce laws made it simpler for spouses to end marriages and allowed spouses to define their own roles within a marriage." Thus ended a time when spousal roles were dictated by the state and people could be blamed for violating those assigned roles—could be judged guilty, for example, of mysterious "personal indignities" directed toward their husband. Today, Judge Walker noted, "marriage no longer requires specific performance of one marital role or another based on gender," and, as a consequence, modern divorces employ blame-obscuring, no-fault phrases like "irretrievably broken" (the phrase used in Justice Sanders's second divorce). Once the state is out of the marital-blame and marital-role-monitoring business, and once marital roles are decoupled from gender, the door begins to open to marriage between two citizens of the same gender. That is, if you agree with Judge Walker. Justice Sanders obviously does not.
For about 25 years after he graduated from law school, Justice Sanders worked as a lawyer in private practice, earning a reputation as a tenacious litigator and piling up a number of notable clients and court victories. He represented property owners, followers of Lyndon LaRouche, gun owners who wanted to carry their weapons in bars, a mental patient who wanted to keep his concealed-weapons permit ("I won that one," he laughs), people fighting involuntary commitment to psychiatric wards (his work in this area led to a tougher involuntary-commitment standard in Washington State), and even the local honorary consul for South Africa's apartheid regime ("I think that people understood that here in America we're all entitled to a lawyer in our defense," he said). One of his proudest moments was taking the case of an African-American man who had been accused of molesting his foster child and was subjected to a polygraph test in an attempt to prove the claim. "The whole thing was bogus," Justice Sanders recalled. "We sued the King County sheriff, and we sued the polygraph operator, and won that case... I said, 'Only in America can someone like this go into the court system and be vindicated.'" (Then, laughing, he added: "Of course, that was before it was reversed on appeal.")
Fighting on behalf on an African- American man accused of child molestation might seem incongruous given Justice Sanders's early writings, but in fact this is exactly his type of case. When he perceives one man standing up against a government wrongly invading that man's privacy, or treating him like a criminal without any actual crime having occurred, Sanders feels duty bound to speak up. (In 2008, acting on this interest in a somewhat different forum, Justice Sanders stood up at a meeting of the Federalist Society in Washington, D.C., and shouted at George W. Bush's attorney general, "Tyrant!")
Justice Sanders's detractors warn that he lacks the same passion when it comes to defending women. Wiggins, the man who wants to win Justice Sanders's seat this fall, has compiled a list of examples online. For example, there's Justice Sanders's 2005 contention that a 13-year-old girl who had a sexual relationship with her male teacher, but allegedly lied about it at one point, was partly to blame. "She may be below the age of consent, but not below the age of honesty," he wrote in his dissent, warning that the majority's ruling could encourage other girls below the age of consent to seduce their teachers. And then there's his dissent, earlier this year, in a case involving a man convicted of stalking two women. One of those women was out for a jog and, after five encounters with the stalker at various points along her running route—encounters in which the stalker escalated from asking her for directions to inviting her to get in his pickup truck—she hid in a yard until some bicyclists happened by and escorted her to safety. In that decision, Justice Sanders wrote that the convicted stalker's behavior was not actual stalking, and more like the behavior of "a man who uses an ill-considered pickup line, is rebuffed, but again attempts to woo the object of his affection later."
You could argue—Justice Sanders would argue—that these cases fit into a different pattern. Over the years he has become, by most accounts, the court's most ardent defender of the rights of accused criminals. "I've stood up for them, and I stand alone, and every six years my opponents demagogue about this," Justice Sanders complained in a July interview. He was the sole dissent in a 1996 case in which a man convicted of robbery and sentenced to life in prison without the possibility of parole under the state's "three strikes, you're out" law tried to challenge that law's constitutionality. The high court upheld the law 8–1 and sent the man off to prison, but Justice Sanders, alone among his colleagues, sided with the man and wrote that "three strikes, you're out" is a cruel punishment and therefore unconstitutional. When he thinks back on his supreme court tenure thus far, he said, that opinion is the one he's most proud of writing. His second-proudest moment: his 1997 dissent in which he defended the right of an African-American man in Spokane to resist what Justice Sanders saw as an unlawful arrest. "Ronald Valentine would not give up his liberty without a fight," Justice Sanders wrote. "Neither should we."
Former justice Phil Talmadge, who clashed with Justice Sanders in a number of rulings and was seen as far more liberal, nevertheless developed a strong friendship with Justice Sanders over the years and has endorsed him this year. Talmadge said Justice Sanders plays an important role on the court. "I think it's useful," he said, "to have someone like Richard who raises issues that the court normally might not address." Talmadge added, however: "He has very strongly held beliefs, some of which I disagreed with profoundly... I don't think I'd want a court of nine Richards."
To this day, questions persist about his sensitivity to certain legacies of injustice—or, as Justice Sanders might put it, his willingness to kowtow to "political correctness." In 1986, when he was in his 40s and working in private practice as an attorney, he attended a costume party dressed in a Nazi uniform. "A German officer's uniform," Justice Sanders said when I mentioned it. A picture of him in the uniform was stolen from his home and later surfaced during one of his campaigns, when it was shown to several people in political circles (but never published or copied) before being given back to him. Seattle Times columnist Joni Balter, who saw the photo, wrote in 1998 that it showed Justice Sanders had "dressed in a Nazi uniform at a costume party and extended his arm in Sieg Heil salute."
"It was a joke," Justice Sanders said. "I wasn't there to offend anybody. It was a private party with, you know, four or five or six people there. They were not offended."
In 1995, during his first campaign for supreme court, Sanders ran against incumbent justice Rosselle Pekelis, a Jewish woman who fled the Nazis with her parents during World War II. During the campaign, he handed out a fact sheet titled "The Pekelis Agenda," in which he highlighted a particular ruling she'd participated in while on the court of appeals—a ruling against an Orcas Island woman who'd put her child up for adoption and then decided she wanted the child back after she discovered a gay couple in Seattle were the adoptive parents. "It is a case that has become a cause célèbre by religious conservatives opposed to homosexuality," the Seattle Times wrote at the time. By highlighting this case, Sanders was actively marketing himself to these religious conservatives, giving them the impression that he was their guy in the fight against gay rights. (Justice Sanders said he doesn't remember handing out the flyer, but has no reason to doubt the published account of him doing so.)
"Any reason to vote for me is a good reason," Justice Sanders quipped in our late September interview, just a few days before traveling to Spokane to appear as the featured speaker at a Tea Party rally.
Another bit of ammunition Justice Sanders used against Pekelis in that 1995 campaign was a ruling, from her time on the court of appeals, regarding a man who'd been arrested late one evening in 1991 for unlawfully displaying a weapon while walking his dog. "It was basically that a man couldn't walk through the park at night with an AK-47 over his shoulder scaring the shit out of all the neighbors," Pekelis said. The text of the ruling supports her memory and adds that the man's AK-47 had the clip attached when he was arrested. He was ultimately convicted, a conviction that Pekelis's appeals court affirmed. Justice Sanders used the court's decision to woo gun-rights advocates and sour them on Pekelis, but she didn't actually write the opinion—she only signed it in concurrence. (This distinction, by the way, is exactly the distinction Justice Sanders now uses as his first line of defense against criticism over his same-sex marriage ruling: He didn't write Justice Johnson's opinion; he only signed it in concurrence. In other words, when it's worked in his political favor in the past, Justice Sanders has ignored this distinction. Now he doesn't.)
"I was a pretty naive campaigner," Pekelis said, looking back on her loss. She didn't realize how appealing—and shrewd—her opponent would be. She thought the advantage of incumbency, plus having endorsements from 12 out of 13 newspapers in the state, plus having all the bar-association endorsements (the King County Bar Association rated Justice Sanders "not qualified") would translate into victory.
But Justice Sanders is a charmer. "A delightful personality," as former-justice Talmadge put it. He's well-off but not showy. He tends to dress in low-rent sports jackets and bland ties. He has a fondness for fancy cars, currently driving a BMW but well known among those close to him for his last car, a red Jaguar, which he drove for about a decade, using it to commute to Olympia from his home on Vashon Island until it was worn out. "Drove the hell out of it," he said. "Put 265,000 miles on it, got rid of it last year or a couple years ago, got $4,000 for it—I should have driven it off a dock a long time before then."
In person, Justice Sanders is self-effacing and funny and impressively sharp, clearly possessed of that essential, shape-shifting political quality that causes many divergent types of voters to believe that deep down, he's really just like them.
On top of that, Pekelis had a weakness: She'd been appointed to the court in spring of 1995 by Governor Mike Lowry, to fill a vacancy when another justice suddenly resigned. That fall, when Pekelis had to face election, Lowry was extremely unpopular because of a sexual-harassment scandal. Justice Sanders simply called her "the Lowry appointee" as often as possible on the campaign trail, endeared himself to anti-gay social conservatives and gun-rights advocates and business interests, and strolled into her seat with 54 percent of the vote.
Immediately after his public swearing-in at the Temple of Justice in Olympia, in January of 1996, Justice Sanders got in trouble. As he recounted it, "I walked across the street to a March for Life event and thanked my supporters." Pekelis, who has watched his career closely ever since she lost to him, thought it outrageous for him to follow his swearing-in with a victory speech to pro-life protesters. "To do that seems incredibly arrogant," she said. "The judge has to be impartial and he has to appear impartial. You're deciding people's fates, people's lives, people's property." In fact, the incident led to hearings before the state Commission on Judicial Conduct, which eventually admonished Justice Sanders—a first in state history for a sitting supreme court justice—for not giving sufficient consideration to the appearance of impartiality. The admonishment was eventually overturned on appeal, however, and Justice Sanders said he still doesn't understand what all the concern was about. "I think that I was unfairly attacked. I gave a one-minute speech. Why should anybody be put through the wringer for three years, $90,000 in attorney's fees, for giving a one-minute speech to a group of people?"
That one-minute speech certainly didn't hurt him in his next election. "He's a very articulate speaker, he's intelligent, and he ran a good campaign," said King County Superior Court judge Greg Canova, whom he defeated in 1998. Canova no longer supports electing state supreme court justices because "it is so difficult to get accurate information out to the voters about judicial candidates." For this reason, and many others—including the relatively low interest in judicial races among voters, whether there's information getting out to them or not—many lawyers and judges in this state, and across the country, think that state supreme court justices should be appointed (and then, perhaps, face the voters in "retention elections," as already happens in other states).
Justice Sanders is not a fan of the idea. The people should have their say, he feels.
Shortly after the beginning of his third term, Justice Sanders again got in trouble with the Commission on Judicial Conduct, this time over a visit with dangerous sex offenders imprisoned on McNeil Island. "The evidence," said Kate Pflaumer, the former U.S. attorney who prosecuted him, "was that Justice Sanders's colleagues warned him and that he was extremely well advised of the limits of any visit. And he chose to disregard those limits and to bring up subjects that were part of a pending case. He believed that he had a First Amendment right to discuss issues with the population, which is significantly counter to most judicial codes of ethics. When you're a judge, your First Amendment rights are limited by your judicial ethics."
This time, Justice Sanders ended up with a formal admonishment, and it stuck. "I think he has a very high opinion of his own judgment," Pflaumer said. "And therefore felt that he knew better than the other justices advising him."
"What I know about him is that a lot of people really, really dislike him," said Justice Sanders's second ex-wife, Kathleen Sanders, a few weeks after his primary-night party. She recalled walking into the King County Prosecutor's Office one day, back when they were married, and seeing Justice Sanders's face up on a dartboard—a legacy, she believes, of some of his contentious land-use cases. But she said he does not return the ire. "He does not think negatively about people. He really thinks more about concepts and issues... That's just one thing that I don't think people realize about him. And he really is passionate about the Constitution and different things. And he's not afraid to stand alone. The argument that everybody's doing it does not persuade him at all. That doesn't mean anything to him."
She was at the party at which he wore the Nazi uniform. "That was just what he wore," she said. "He's not anti-Semitic. He likes everybody as much as he likes everybody. He's not a real people person. He's not touchy-feely. But people are people, and he takes them as they come, I think."
She said she has met both of his girlfriends and that her impression is that they both know about each other. "I wouldn't put up with that," she said. "But some people do—I mean, look at Hillary Clinton." How to describe Justice Sanders's concurrent relationships with two women? "I suppose, if you want to put a name on it, polyamory."
During his third term, Justice Sanders and a majority of justices upheld the First Amendment right of political candidates to lie about each other. When asked in our interview whether he takes advantage of that ruling, Justice Sanders replied in a quiet, honest tone: "I don't lie." Kathleen Sanders offered something of a concurrence: "He's completely honest. He never lies about anything. You just have to ask the right question sometimes."
When Kathleen Sanders filed for divorce in April of 2000, saying the marriage was "irretrievably broken," Justice Sanders filed an "answer" saying he did not accept that the marriage was "irretrievably broken" and that, "in further answer," he "loves his wife with all his heart and desires nothing more than to reconcile and repair problems which have led to this proceeding."
She was not interested, but he was not in any hurry to be done. At one point, she filed a copy of his supreme court calendar to prove that he did, in fact, have time to appear at their divorce trial on days when he said he was too busy with high court matters. The trial never ended up happening. Through mediation, and then arbitration, and in the courtrooms of three different judges—one recused herself, another was removed after Justice Sanders filed an affidavit saying she could not give him a fair trial—the couple achieved an agreement in which money was exchanged, a parenting plan agreed to, and the marriage officially ended. Along the way, each of them took advantage of numerous state laws that applied exclusively to heterosexual couples and their children, designed to protect them when things fall apart.
Kathleen Sanders said that even then, Justice Sanders did not give up his efforts to reconcile. "I'll tell ya, Richard's tenacious," she said. He had friends and supporters—and even a conservative rabbi—call her on his behalf. But she was not moved. She was done.
Explaining why she nevertheless wants him to win this fall, Kathleen Sanders said: "I know how hard he works, and I know how he works through cases. He takes the job very seriously... I think he's a great lawyer and a good judge, probably just not the best husband."
The year that his second divorce was finalized, 2001, Justice Sanders and the high court decided two major gay-rights cases. The first was Heinsma v. City of Vancouver, which arose after the City of Vancouver, Washington, decided in 1998 to expand the definition of "dependents" so that domestic partners of city employees could receive health benefits. The decision was 8–1 in favor of Vancouver's right to offer such benefits. The lone dissenter was Justice Sanders, who fixated on the word "dependents," the plain meaning of which, he said, did not include domestic partners. "Whatever the consequences, we must accept the plain meaning of plain words," he wrote. "Here the majority strains to arrive at a politically correct result. Yet appropriate application of state statutes is more than an Alice-in-Wonderland exercise of simply making words mean what we, or municipalities, choose them to mean."
The second major gay-rights case was Vasquez v. Hawthorne, about whether a gay man could inherit his deceased partner's property. Again, Justice Sanders was on his own, agreeing with the majority that the case should be sent back to a lower court for retrial, but then going further than the majority and writing a separate opinion that said the only possible outcome of the retrial could be to deny the surviving partner inheritance rights. That the majority didn't say so, he wrote, provided "somewhat less satisfaction than can be obtained from kissing one's sister." (When asked what exactly he meant by the analogy, Justice Sanders said he couldn't recall the particulars of the case.)
Four years later, the court heard a case about the custody rights of two women who had been in a lesbian relationship, had a child through artificial insemination, and then split up. The 7–2 ruling helped establish precedent for custody rights in homosexual relationships in this state, but again Justice Sanders was in the minority, signing a dissent written by Justice Johnson that asserted that the non–birth mother of the child "is not a parent under any reading of our constitution." That dissent concluded, in familiar phrasing, that the majority's opinion was mainly about bowing down to "current notions of political correctness."
Then, of course, came the same-sex marriage case—and, 17 months later, the decision. It's a decision that follows Justice Sanders wherever he goes on the campaign trail. Wiggins, his opponent, has said that he probably would have ruled the same way Justice Sanders did, but likely would have avoided Justice Johnson's opinion. "I'm not sure I would have gone there," he said at a September 22 candidate forum hosted by gay-rights advocates at the downtown Seattle Grand Hyatt.
At the same forum, Wiggins appeared to be considering a change to his position, saying the central logic of the Washington State Supreme Court's same-sex marriage decision needs to be reexamined in light of the lengthy, comprehensive ruling by Judge Walker in the Prop 8 case earlier this year. "I think the Proposition 8 case opens up a serious question," Wiggins said. "I think that it calls on legislators, it calls on the public, it calls on judges to reevaluate this issue."
Pekelis, the first person in this state to learn what it's like to run for the high court against Justice Sanders, has given money to Wiggins's campaign and hopes Wiggins can make this Justice Sanders's last year at the Temple of Justice. "The reason I support Charlie Wiggins," she said, "or any other candidate against Justice Sanders who has the essential qualities of judicial temperament, is that, as far as I can tell, in his career on the bench he has continued to represent constituencies rather than being neutral. Judicial temperament isn't just not having a shit fit on the bench. It's being willing, and wanting, to play the role of the neutral." Told of her criticisms, Justice Sanders responded: "She doesn't know what she's talking about."
Whatever the case, her experience losing to Justice Sanders offers a serious caution to Wiggins, who, like Pekelis before him, has better ratings from state bar associations—a caution against underestimating the wiliness and "delightful personality" (as former justice Talmadge put it) of a man who can play to both a Tea Party rally and a Democratic forum on marijuana laws with ease, who can disarmingly make his case to audiences of both gay-rights activists and religious conservatives, who has secured endorsements from the left (The Stranger endorsed him in 1998) and the right (the NRA, the Washington State Republican Party), and who can maintain concurrent relationships with multiple girlfriends and an ex-wife who still supports his career.
On that last point, lawyer and openly gay state representative Jamie Pedersen, who helped craft the arguments of gay-rights supporters in the 2006 same-sex marriage case and is now supporting Wiggins, said there's an unfortunate dissonance between Justice Sanders's personal life and the same-sex marriage opinion he signed.
"It's ironic," Pedersen said, "that a justice who ruled that gay and lesbian people don't deserve marriage because we screw around so much and our relationships are short-term, unstable, and nonmonogamous has taken advantage of his own right to marry twice."
Openly gay state senator Ed Murray, who has not formally backed anyone in the race, added: "There's always been a level of hypocrisy among many people who oppose us or oppose our families, whether it's in law or religion or politics."
University of Washington law professor Hugh Spitzer, an expert on the Washington State Supreme Court, called Justice Sanders "one of the brightest members of that court" and a good friend, but said his same-sex marriage decision is part of a broader pattern of inconsistency. "He's fairly strong on civil liberties," Spitzer said. "But not for everyone. Certainly not for gays and lesbians." Spitzer, who gave $100 to Wiggins's campaign but also praised Justice Sanders in a recent online article, continued: "Fundamentally, a problem that Justice Sanders has is that his underlying libertarian perspective is often outweighed by an underlying conservative perspective, and he is unable to reconcile that internal conflict within himself in jurisprudential questions."
Pedersen makes a similar point in different terms. "He believes in a 'gay exception,'" Pedersen said. "He suspends his normal support for civil rights when it comes to gay people. We always lose."
Michael Maddux—the paralegal who learned about Justice Sanders's multiple girlfriends last spring—has been thinking about the same-sex marriage decision and sees blatant hypocrisy. "When you're signing on to something that basically condemns your own lifestyle, I think it's bullshit."
As for Justice Sanders, he said in a phone interview on October 4 that he doesn't see any hypocrisy. "Not at all," he said. "I'm entitled to my own private life as well as anybody else, and I don't go prying into theirs, and I don't appreciate people that pry into mine. My opinions reflect the law, or my understanding of the law, and that's it."
He added: "My personal political philosophy should have nothing to do with my opinions on the court—and I don't think it does."
Why, in the end, Justice Sanders lost the race.
This story has been updated since its original publication.