By RACHEL LA CORTE
The Associated Press
OLYMPIA — Richard Sanders was the last person to unseat a state Supreme Court justice 15 years ago.
Now, he’s all but conceded that he’s lost re-election himself, following the most aggressive campaign he’s faced during his time on the state’s highest court.
After nearly two weeks of vote counting, Sanders was losing to Bainbridge Island attorney Charlie Wiggins by a margin of more than 5,700 votes out of more than 1.8 million counted so far.
Though Sanders led in most of the state’s counties, he was losing big where it counted the most: vote-rich King County, where Wiggins held a 59 percent advantage.
Sanders’ campaign e-mailed a statement to supporters on Friday saying it was unlikely that the three-term justice would close the gap. But Sanders said that he wasn’t ready to concede just yet.
“I don’t think I’ve lost the race until every vote has been counted, but I’m not optimistic,” Sanders said by phone Friday night. “If there’s some miraculous turnaround in these returns, I’ll take it.”
Sanders said he’s the victim of an ultra-negative campaign that ended with The Seattle Times reporting remarks he made at a recent court meeting, suggesting that racial bias plays no significant role in the criminal justice system.
The Times editorial board then recanted its endorsement of him and threw its support to Wiggins.
Sanders insists his comments were misconstrued, and says he believes crime is a choice that is made easier or more difficult based on one’s circumstance.
“I would never say, nor do I believe, that people commit crimes because of their race,” he said earlier this week.
Sanders believes the story, which ran a week after voters received their ballots in the mail, played a significant role in how the race turned out.
“I can’t think of another explanation for it,” he said. “There were other reasons that people would vote for Charlie and not vote for me, but I think that ultimately is what made the difference in a close election.”
It was the most recent controversy surrounding Sanders, but the comments that may have been his undoing were not the first time he’s been in the news since the start of his career on the high court, after defeating Justice Rosselle Pekelis in 1995.
Hours after being sworn in to the court in January 1996, Sanders joined an anti-abortion rally at the state Capitol.
The Commission on Judicial Conduct voted to reprimand him, but a panel of judges later concluded he was within his free-speech rights.
The commission weighed in once again following a tour Sanders took of Washington’s sex predator commitment center at McNeil Island while residents had appeals pending. Sanders was given an admonishment in 2005 for that visit, but he still insists he did nothing wrong.
And Sanders says he was only speaking his conscience when, in 2008, he stood up and yelled “tyrant!” at then-U.S. Attorney General Michael Mukasey at black-tie dinner in Washington, D.C., for The Federalist Society, a conservative legal group.
Sanders later released a statement citing inadequate access to the legal system for detainees at Guantanamo Bay and the importance of the Geneva Conventions.
Then last year, the state Supreme Court withdrew a public-records ruling Sanders had authored after the losing party, King County, complained that Sanders had a conflict of interest because he didn’t disclose that the ruling affected a public-disclosure lawsuit he filed in Thurston County in 2005 against the state attorney general.
The case was reargued without him.
He also received criticism from gay rights groups and others for his part in the 2006 ruling against same-sex marriage.
He was in the majority 5-4 ruling, but instead of signing on to the majority opinion or writing his own concurrence, he signed on to an opinion authored by Justice Jim Johnson that more actively opposed same-sex marriage, citing “the unique and binary biological nature of marriage and its exclusive link with procreation and responsible child rearing.”
Hugh Spitzer, a Seattle attorney and affiliate professor at the University of Washington’s School of Law, said that that the latest comments from Sanders concerning racial discrimination “reminded people that he was that judge who did a number of things that we don’t expect our judges to do.”
“I don’t think this one incident did him in,” he said. “It was cumulative, but people needed to be reminded.
“And he put his foot in his mouth once again.”
Spitzer, who supported Wiggins but said he considers Sanders a friend, said Sanders “brought a tremendous amount of intelligence and intellectual liveliness to the court.”
“If he had not made errors in judgment in terms of where he appeared and what he said, and things like this, then he would have survived this election,” he said.
On the court, Sanders is best known for his fiery and frequent dissents. A self-described libertarian, Sanders says he’s most proud of his work supporting the rights of criminal defendants.
“There’s no one on the court that tries to protect the rights of unpopular people like I do,” he said.
Many county prosecutors and police groups threw their support to Wiggins, who has been an attorney for more than 30 years, and briefly served on the state Court of Appeals in Tacoma in 1995 after being appointed to the seat.
Wiggins also served as a substitute judge in King and Jefferson counties, handling criminal and civil cases, and helped oversee bar-disciplinary cases.
Wiggins said he respects Sanders’ “intellectually provocative” legacy on the court, but that his actions on and off the bench didn’t serve him well.
“Justice Sanders is unique. I think that’s part of his appeal, I think that’s part of his charm,” Wiggins said.
“But this year, that was part of his problem, because he was unique and different in ways that voters were unable to continue to support.”
Sanders doesn’t apologize for the controversy that surrounds his tenure on the court, and argues it only exists because he’s been held to a different standard than many of his colleagues.
“I’m not looking for trouble, trouble’s looking for me,” he said.
Former Justice Phil Talmadge, who endorsed Sanders in his re-election bid, said that while he often sparred with Sanders on the court, he always valued the “intellectual give and take” of their relationship and said that Sanders served filled an important role.
“In a multimember court, there’s a tendency for group-think,” Talmadge said. “It’s useful to have someone who raises questions about what the court is thinking and doing. It’s healthy for the court.”
