About My Yale Law School Classmate Brett Kavanaugh

Supreme Court nominee Brett Kavanaugh and I both graduated from Yale Law School in May 1990, along with 165 other overachieving and neurotic classmates. 

I wasn’t planning on writing anything about Judge Kavanaugh, for two reasons:

First, I recently lost my primary election for the Washington Court of Appeals. This loss was yet another unsuccessful attempt to become an appellate judge myself. I figured it’s too soon to invite comparisons between my own painful experience and someone else’s charmed judicial career. It might be triggering. And we already know I suffer from PTSD.

Second, unlike everyone in the greater DC area, I thought I had no information to share about Judge Kavanaugh. To the contrary, he may be the only member of our law school class I never met or interacted with.

My confidence level regarding my non-relationship with Brett Kavanaugh is pretty high.

I’m not merely relying on ancient memories about particular folks’ attendance or nonattendance during three years of legal seminars and intoxicating social events. Subsequent reminders corroborate my recollection. 

Since graduation, Yale’s glossy Alumni News has regularly updated me about various Kavanaugh career milestones: his Supreme Court clerkship, his true-believer service as part of Ken Starr’s dogged impeachment investigation, his work in the second Bush White House. Our class secretaries would forward pictures of George W. Bush hugging him, or his mentor Justice Anthony Kennedy swearing him in as a judge on the D.C. Circuit Court of Appeals. Each time I would pull out our Yale facebook directory, and again examine the black and white portrait. 

“Yep, that’s the guy in my law school class I never met.”

Why did I change my mind and decide to speak out about Judge Kavanaugh’s embattled Supreme Court nomination? Two reasons:

First, I was disturbed by multiple reports about Judge Kavanaugh’s legal career, as well as about his and his Republican supporters’ lack of candor. It’s not merely that we’re living through another #MeToo moment, amplified by flashbacks to Anita Hill. It’s also David Brock’s chilling description of collaborating with Kavanaugh in the 1990s as “part of a close circle of cynical hard-right operatives.” There’s the pattern of false and misleading statements about Kavanaugh’s role in the Bush White House. There’s Kavanaugh's implausible testimony that he doesn’t remember receiving the sexually explicit joke compilation emails that his other judicial mentor, disgraced Ninth Circuit Judge Alex Kozinski, sent to his former clerks. Finally, Kavanaugh is complicit in the GOP’s refusal to produce or consider thousands of relevant documents regarding his legal career. Under the circumstances, Republicans’ insistence on ramming his nomination through the Senate is unseemly.

Second, the fact that I didn’t know someone in law school, standing alone, is not much of a data point. Nevertheless, my lack of any personal encounters at law school with Brett Kavanaugh resonated with others' observations.

I’m not criticizing Judge Kavanaugh for his conservative bona fides, which are readily apparent from his record. And it’s not just my own progressive perspective. Like most educational institutions, Yale Law School skews left. (I went from being one of the most radical students at Brigham Young University to being dead center at Yale.) Nevertheless, despite its decidedly liberal overall bent, Yale Law is also extraordinarily diverse. Even with the excessive number of Yale College graduates who linger in New Haven.¹

¹Sorry, Kathleen and Jamie. 

The rest of my classmates hailed from all over the country and the world, bringing their varied backgrounds and interests to the melting pot. In addition to the occasional pesky law class, you could spend your time with student legal clinics, cutting-edge academic journals, and endless philosophical arguments. My closest friends at law school included evangelical Christians, unreconstructed libertarians, prep-school Republicans, and even bros.

So I was struck by the paltry list of signatures on our classmates’ letter to the Senate Judiciary Committee in support of Judge Kavanaugh’s Supreme Court nomination. The twenty-three signatories include just three women, and no LGBT individuals that I'm aware of. No offense to Michelle, Mary, Stephanie, Mark, and my conservative friends who signed, but overall it’s a pretty bro-ish bunch.

Last week, another law school classmate questioning the Kavanaugh nomination on Facebook acknowledged she did “not have any particular recollection of him during that time.” Thena is so smart she abandoned the law after graduation and became a medical doctor. I don’t think she’ll take offense if I reveal she was not a Fox News blonde in law school.

As Slate’s chief political correspondent Jamelle Bouie recently observed, Judge Kavanaugh is “the perfect nominee for our era of elite impunity.” According to Bouie, our current “crisis of accountability” reflects 

a world where responsibility and culpability are structured by race, class, gender, and your overall proximity to disadvantage. In the existing framework, we cannot ask a prospective Supreme Court justice to account for the actions of his youth, but we can hold a 12-year-old black boy responsible for not heeding police commands fast enough, or a 17-year-old black teenager for not deferring to a neighborhood watchman.

Homespun Midwestern girls and queer-ish misfits from Utah are just some of the many people who will never be part of Brett Kavanaugh’s world.

For the last several years, the Supreme Court has been closely divided – between graduates of Harvard and Yale. Judge Kavanaugh’s elevation to the Court will tip the majority to Yale. 

As a YLS alumnus, I should be excited about entrenching our hegemony. But I’m already tired of explaining how legal extremist Justice Clarence Thomas does not represent the values I learned at Yale. Not even counting the eerily similar manner of his confirmation in the face of Anita Hill’s damning sexual harassment testimony.²

²Seat-stolen-from-Obama Neil Gorsuch is also a member of the Supreme Court’s permanent asterisk club, but at least Justice Gorsuch went to Harvard.

After stress-testing constitutional norms for decades, Senate Majority Leader Mitch McConnell is on the brink of his ultimate anti-democratic triumph. The Supreme Court will lurch far to the right. And I dread the prospect of spending the next thirty years telling my children I went to law school with Justice Brett Kavanaugh.

Here are links to more of my “Doppeler Effect” essays, describing other individuals whose lives have paralleled and/or crossed particular threads of my own story: 

"Rosencrantz and Guildenstern are Gay Mormons" (9/11/17)

“I am Rob Lowe” (9/20/17)

“Chorus Minivan Dad” (3/6/18)

“My Best Friend Paul" (6/7/18)

"Crossing Paths" (10/7/18)

"Crazy Mormon Mommy Bloggers"


"Beyond Bardolatry" (3/26/20)

Act Two....

The ballots have now been counted in Washington’s primary election. Unfortunately, I will not be one of the candidates continuing on to the general election in November. 

Thanks to all the voters and others who supported me, particularly intrepid volunteers like Marla Jones and Jack Hovenier, and graphics designer Dennis Phillips. Most of all I’ve appreciated my family’s love and support. 

Before entering the race, I reached out to several people for campaign advice. A couple of friends shared their recent experiences as a candidate. Each survived the primary, only to fall short in the general election. When I asked each what they wished they had known as a new candidate, I expected tips about balancing family responsibilities, effective fundraising, or using social media. Instead, both independently gave me the same response – “I wish I’d known I was going to lose” – with the implication in each case that they wouldn’t have run at all.

Their observation stuck with me. I was entering a crowded and uncertain race, where four of five candidates would inevitably lose. I campaigned to win. But I also tried to use the experience – win or lose – as an opportunity for family and personal growth. I set goals about managing anxiety, creating positive experiences for my family, and raising my community profile. I didn’t meet my exercise targets, but I made progress on things like reading, writing, and unplugging from the internet. 

Although I’m disappointed by the outcome of the election, I do not regret running for the Court of Appeals. I look forward to finding other opportunities for service.

As any candidate will report, the best part of the experience was interacting with voters. For example, after my presentation at the League of Women Voter’s forum last month, I was touched by the women who came up to tell me I should be a teacher. Similarly, in an encouraging sign of voter engagement, my post “Vote for Roger” quickly received more hits than any of my prior blog posts. Multiple folks thanked me for explaining what appellate judges actually do. 

Nevertheless, candidates can easily retreat to a bubble of positive news – no one bothers to tell you they’re voting for the other guy. (Other than the Second Amendment fanatic who scoured ancient Facebook posts looking for evidence that I would be a “gun grabber” as a judge.)

In the end, it’s not enough to be the most qualified person in an elaborate popularity contest. So I’m fortunate to have the recent example of watching my daughter gracefully handle defeat in her election for middle school class secretary. If she can do it, so can I.

F. Scott Fitzgerald famously and falsely wrote “There are no second acts in American lives.” To the contrary, our lives are endless stories of reinvention and redemption. 

I confess I got my hopes up over this judicial campaign thing because it seemed to offer such an elegant and appealing path out of the troubles that began plaguing me a few years ago. But so did my job at the university, as well as other promising job leads that didn't pan out. Yet. It turns out there is no one true Act Two (or Act Three, or Four, or whatever). So it's back to the job search, and writing, and a little legal work. Let me know if you hear of any professional opportunities in the area.

In the meantime, the kids will be back from summer camp soon, and we're looking forward to a fun conclusion to an interesting summer. 

Thanks again to everyone for your support and encouragement.

Vote for Roger

Earlier this week I got a message on Facebook from a stranger. I was about to delete it as spam, but then I realized it came from a voter. She asked, “Why should I vote for you instead of _______?”

I said I’d get back to her. 

Then yesterday I participated in the League of Women Voter’s Primary Election candidate forum. For the first and only time, all five lawyers who are running for our region’s vacancy on the Court of Appeals appeared together. 

The forum was interesting but somewhat frustrating. None of us had enough time to fully engage the voters’ questions, and everyone demonstrated a tendency to fall back on self-serving soundbites. (You’ll be shocked to learn both the former prosecutor and the public defender think what an appellate judge needs most is lots of experience with criminal trials.) 

Venues like the voter forum are particularly challenging for me, for a couple of reasons. First, my Post-Traumatic Stress Disorder can make large social settings awkward, and brings out my stammer. Second, I’m extremely shy about tooting my own horn. As a result, no one underscored some of the obvious qualifications that set me apart from the other candidates, such as my stellar academic credentials as a graduate of the best law school in the country; my employment at two of Washington’s top law firms; my service with the nation’s premier nonprofit advocacy organization; and my years of professional and community leadership. (Visit www.leishmanforjudge.com for more information about my background.)

Maybe I’m better at telling my story in writing rather than in person. So why should the voters of Whatcom, Island, Skagit, and San Juan Counties vote for me instead of one of the other four candidates?

The courtroom of the Court of Appeals, Division One,  in Seattle

Before choosing a candidate, you need to figure out what kind of a judge you’re electing.

The judicial branch of government is like a pyramid. At the bottom of the pyramid are the numerous trial courts across the state. Trial judges are responsible for the vast majority of judicial decisions, from evidentiary rulings to criminal sentences. Together with the juries they wrangle, trial judges resolve all factual disputes, based on the evidence in the record. These busy trial judges also issue rulings on numerous purely legal disputes – but they do so under constant time pressure, and with limited resources. I have immense respect and admiration for these dedicated judges.

At the top of the judicial pyramid is the Washington Supreme Court. The Supreme Court is the ultimate authority on the Washington constitution, common law, and statutory interpretation. Like its counterpart in the federal system, the Washington Supreme Court only considers a very limited number of cases each year, choosing to weigh in on the legal issues that pique the interest of a bloc of justices, or to resolve conflicts among lower court decisions. I've had the pleasure of knowing most members of the state Supreme Court over the last decade; each is deeply committed to justice and the rule of law.

Last in our judicial pyramid, squeezed in between the busy trial courts and the picky Supreme Court, is the Court of Appeals. Every litigant has the constitutional right to an appeal. The Court of Appeals decides almost all appeals from trial court decisions in Washington, including civil, criminal, juvenile, and family law matters. 

Unlike the “policy-making” role of the Supreme Court, the Court of Appeals is primarily an “error correcting” court. The Court of Appeals reviews the trial court’s evidentiary and factual rulings under a deferential standard of review. The Court of Appeals also takes a fresh look at the various legal rulings in the case. The Court of Appeals’ written opinions resolving each appeal provide trial judges, attorneys, and litigants with the only map covering much of Washington’s legal terrain.

The Washington Court of Appeals consists of a total of 22 judges in three divisions that hear arguments in Seattle, Tacoma, and Spokane. Each judge has a couple of law clerks to help review the record and analyze relevant legal authorities. The court also has several staff attorneys who assist with routine criminal appeals. 

Other than performing the occasional marriage, an appellate judge never acts alone. Instead, a rotating panel of three Court of Appeals judges reads the parties’ briefs, hears arguments, and decides each case. Appellate judging is a team sport.

Seattle-based Division One of the Court of Appeals is the busiest appellate court in the state. Almost half of the 3,683 total appeals filed in the Court of Appeals last year were handled by Division One.  Each judge on Division One hears several hundred appeals a year, and writes the opinion of the Court in approximately 75 cases. If an individual judge does not agree with some or all of the reasoning embraced by the other members of the three-judge panel hearing the particular case, he or she can write a concurring or dissenting opinion. That's a lot of writing. (In contrast, the nine justices of the Washington Supreme Court issued opinions in only 92 cases – a few more than the United States Supreme Court – with each individual justice responsible for writing a mere 10 opinions.)

Division One is also the largest appellate court in the state, with ten judges. Seven of Division One’s judges are elected from King County, the state’s most populous jurisdiction. Two judges are elected from Snohomish County, immediately north of Seattle. 

The tenth member of Division One is elected by the voters of four counties here in Northwest Washington. About half of the votes come from Whatcom County, where I now live, and where my family has lived for almost four decades. Twenty-five percent of the votes come from Island County, where I owned a house for fifteen years, before the road and my driveway slid down the bluff in a massive landslide. Twenty percent of the votes come from neighboring Skagit County, and five percent come from the islanders of San Juan County. 

The late Judge Susan Agid, who served on Division One of the Court of Appeals for two decades, owned a cabin down the road from my house on Whidbey Island. Ten years ago, she was one of the first people who encouraged me to seek a position on the Court of Appeals. 

Judge Agid described appellate judges as “the last living generalists, expected to know something about every area of the law.” This is particularly true for judges on error-correcting appellate courts like the Court of Appeals.

For more than half of my legal career, my practice focused on appeals. When I was a partner in Davis Wright Tremaine LLP, the state’s second largest law firm, I was the firm’s expert on Washington appeals. Like an appellate judge, my role in each appeal was to figure out the applicable area of the law, and then apply it to the record in the case. I am thoroughly familiar with Division One’s procedures and personnel.

During the times in my career when I wasn’t perched in an appellate niche, I was blessed with opportunities to represent clients in many other kinds of venues. I appeared in jury and bench trials, arbitrations, and mediations, and counseled clients about their business and personal dilemmas. I’ve been a contingent-fee plaintiff’s lawyer. I’ve represented defendants. I’ve worked on multiple criminal matters. I’ve handled numerous family law cases, including dissolutions, custody disputes, and the termination of parental rights. I’ve worked for both small and large private firms, and for nonprofit and government agencies. I served as chief legal advisor to the state’s third largest university. I've advocated for children, the disabled, and other marginalized populations. Over the years, I gained substantial experience in numerous areas of the law, including employment, civil rights, real property, torts, contracts, evidence, class actions, constitutional law, privacy, water law, and intellectual property. 

More than any of the other candidates, my twenty-eight years of experience in a varied and sophisticated legal practice has prepared me for an appellate judge’s essential role as a legal generalist.

All of the judges I’ve admired over the years have been passionate about “getting it right,” in two separate senses. 

First, judges strive for the result that best serves justice. In contrast with lawyers, who approach each case from the perspective of zealous advocacy, judges are attentive but impartial. For the rule of law to thrive, "getting it right" means all litigants need to believe they’ve been heard, and that the courts have treated them fairly.

Second, many of the legal questions before the Court of Appeals involve complex puzzles with a “right” answer. Judges need to figure out the applicable legal rule, weighing the parties’ arguments and identifying the most analogous prior cases. Judges must then apply the right rule fairly and consistently to the facts of the case, showing how both the rule and its application connect to the rest of the law’s vast terrain. The Court’s written opinions should ultimately become a clear road map to guide future lawyers, litigants, and judges. 

Getting to the right answer requires someone who is not just fair and smart, but also smart in a very specific way. I have been preparing for this role my entire career.

I originally went to law school because I was a tortured gay Mormon English major who needed to escape from Brigham Young University. 

This whole law thing has never been a perfect fit. I spent years in private practice, flirted with grad school, and moved to Chicago to be a gay rights lawyer with the ACLU. Along the way I explored academia, boutique firms, nonprofits, government, and other alternatives. 

Eventually I concluded I would make a good judge, particularly at the appellate level, which is much more academic and writerly than most trial-level courts. Over the years I worked closely with judges and bar leaders, acquiring useful skills and contacts. And I sought out opportunities to hear about the various paths to the bench. Meanwhile, I was the longtime chair of the nonprofit organization promoting inclusion in the stodgy legal profession – working with numerous judges and other bar leaders in our efforts to diversify private firms, government law offices, and the judiciary. 

The Court of Appeals offers the perfect legal role for a smart introvert. Even before going to law school, I felt the call to public service. I love the law. I love reading and writing. I’m very collegial, particularly in small groups. Indeed, I do my best thinking when I can vigorously exchange ideas with a few close colleagues – before closing the door and collecting my thoughts alone. I’m even good at occasional committee meetings, teaching gigs, and public events. It’s a good fit.

Several years ago, when I was still an appellate lawyer in Seattle, I unsuccessfully applied for appointment to one of the King County positions on Division One. At the time, multiple bar associations rated me Exceptionally Well Qualified for the Court of Appeals. Since then, my additional professional experiences have further prepared me for judicial service. Moreover, in the last three years I’ve also grown from receiving a disconcerting PTSD diagnosis, facing discrimination, managing my disability, and overcoming adversity.

My professional accomplishments make me stand out as a judicial candidate. In addition, I would bring much-needed diversity to the Court of Appeals. The Court has never had an openly LGBT judge, or an openly disabled judge. I hope my judicial colleagues – and the litigants before us – would benefit not just from my legal acumen, but also from my life experiences.

If these arguments fail to convince you, perhaps I can appeal to a little tongue-in-cheek philosophy?

“Utilitarianism” is an influential ethical theory that began with eminent Victorians like Jeremy Bentham and John Stuart Mills, and continues today with folks like Princeton professor/animal rights advocate Peter Singer. Utilitarians make their decisions based on which alternative will bring the greatest amount of total happiness (calculated as the sum of all pleasure that results from an action, minus the suffering of anyone involved in the action).

The other four candidates on the ballot currently are employed in private practice. No doubt each would be happy to win the election in November. Nevertheless, each already enjoys a successful and rewarding legal career that will continue to flourish, even if he or she doesn’t become a judge at this particular time.

In contrast with the other candidates, I’m an unemployed disabled gay single dad. Because of family ties, I live in a small community with limited professional prospects. Winning the election in November would spectacularly transform our lives: my career would be revived, my daughters could get braces, my son would get a new bicycle, I wouldn’t have to move in with my parents, we'd finally trade in our ancient minivan....

You get the picture. Perhaps we should print up new T shirts: “Vote for Roger … for the children.”

Throughout my legal career, colleagues and judges have recognized my talents as an exceptional writer. Nevertheless, during that time, I also suffered from excruciating writer’s block.

The silver lining from my PTSD diagnosis and treatment came when my writer’s block finally lifted. In the last year, I’ve written hundreds of thousands of words for this blog and other writing projects. I’ve had the opportunity to read extensively, honing my analytic skills. I’m becoming an even better and more fluent writer.

As I observed above, judges on the Court of Appeals need to read and absorb voluminous materials, then expeditiously draft thoughtful and understandable legal opinions. A great judge’s written opinions will illuminate the law for generations of readers.

Vote for a smart gay single dad with 28 years of diverse legal experience.  

And vote for a writer.

JWTYHCOYO… the Teen Years

JWTYHCOYO! is an abbreviation for “Just wait till you have children of your own!” It’s the title of a 1974 book about parenthood by housewife/columnist Erma Bombeck. 

The phrase JWTYHCOYO! actually came from Bombeck’s own youth. I don’t remember what she and her mother were arguing about; I don’t recall whether Bombeck herself remembered. What stuck was the image of her mother turning to her and saying “Never mind why I’m smiling. Just wait till you have children of your own.” 

In a blog post last winter, I reported that I’d had my first opportunity to use Bombeck’s line on one of my own children.

Last month my daughter Rosalind turned thirteen. Sixteen days later my daughter Eleanor also passed the teenager milestone.

Recently I had a flashback to an incident that occurred thirty years ago, when I was in my early twenties. I was home visiting my parents in Bellingham between semesters of law school. I noticed a  a brand-new copy of a book about parenting teenagers.

I pointed out to my mother that it was a bit late to be closing this particular barn door, as I’d entered and then exited the teen years some time before. Obviously I’d been a model child, with no need for specialized manuals.

My mother sighed. She said, “I used to have children in their teens. Now I have teenagers.”

Unlike my parents, I enjoyed a very brief teenager honeymoon.

Last weekend my family marched in the Bellingham Pride Parade. We carried signs and wore T shirts letting the community know I’m running for the Washington Court of Appeals. Rather than make a float or find a convertible, I borrowed a couple of adorable dogs from my ex to complement my adorable children. (FYI, Bear and Buster are both “Aussiedoodles,” which means they’re the size of poodles but keep trying to herd you like an Australian shepherd.) 

As you can see from the picture, one member of the family declined to wear her campaign T-shirt, and instead insisted on wearing a black shirt in the blazing sun. The entire length of the parade she whined nonstop about how mortifying it would be if someone from school saw her.

I hope I live long enough to see Eleanor parent teenagers. JWTYHCOYO….

Click here for more episodes of Gay Sitcom Dad

Voter Guide

Even though the election is months away, the very organized folks at the Secretary of State's office require all candidates to submit their strictly-regulated information for the online and printed voter pamphlets very early. Like today. So here's mine:

Roger Leishman for Court of Appeals 

Legal/Judicial Experience

Washington Office of Attorney General (chief legal advisor to Western Washington University); Davis Wright Tremaine LLP (partner in appellate practice group); also worked in other small and large law firms and for nonprofit advocacy organization

Other Professional Experience

Washington State Bar Association (Board of Governors); Washington Supreme Court Discipline Advisory Round Table; WSBA Court Rules Committee; Q-Law

Education

Yale Law School (Juris Doctor, 1990); Brigham Young University (B.A. in English summa cum laude,1986)

Community Service

Washington Initiative for Diversity (chair); Seattle Men’s Chorus; Vancouver Men’s Chorus; Equality Federation (chair); Leadership Tomorrow

Statement

Ever since I went to law school thirty years ago, I’ve appreciated the vital role of the rule of law. Judges must ensure that every party has a full and fair opportunity to be heard.

My varied legal career has prepared me for service on the Court of Appeals. I have successfully argued appeals in the Washington Court of Appeals, the Washington Supreme Court, the Alaska Supreme Court, and the federal Court of Appeals. I’ve written hundreds of briefs in a wide variety of cases, including family law, contracts, criminal, employment, intellectual property, and civil rights. 

As a leader in the Washington legal community, I’ve worked closely with judges and lawyers to promote the rule of law. Throughout my career, I have been committed to public service and ensuring access to justice for all. I promise to maintain the integrity of the judiciary, uphold fairness and common sense, and treat everyone with respect.

On a personal note, my family has lived in the area for almost forty years. My three children began school on Whidbey Island, and now attend Bellingham public schools. I would be honored to serve the people of Northwest Washington on the Court of Appeals. 

Contact

(360) 325-1242; leishmanforjudge@reachfar.net

www.leishmanforjudge.com

I also received an email from the good people at the Elections Division informing me "Your name will be on an audio recording for assisted voting and for the audio Voters’ Pamphlet. In order to correctly record, please help us learn how to pronounce your name."

As I previously wrote in "The Great Vowel Shift," members of Clan Leishman have historically disputed the proper pronunciation of our surname. 

I have until next Wednesday to submit my pronunciation guide. Should I go with "Leashman," "Lishman," or "Leischman"?

Leishman for Judge

I’m excited to announce my candidacy for the Washington Court of Appeals. The primary election is August 7, and the general election is November 6. My campaign website is already online:  www.leishmanforjudge.com.

The Court of Appeals is Washington’s intermediate appellate court, with a total of 22 judges in three divisions hearing arguments in Seattle, Tacoma, and Spokane. I am running for the seat being vacated by Judge Mary Kay Becker after 24 years of distinguished service. This is the only position on the Court elected by the voters of Whatcom, Island, Skagit, and San Juan counties.

Since graduating from Yale Law School twenty-eight years ago, I’ve enjoyed an interesting and diverse legal career. I’ve had the privilege of representing clients while working in large and small law firms, in nonprofit advocacy, and as a government lawyer. Throughout my career, I’ve also sought out opportunities for public service, such as serving on the Board of Governors of the Washington State Bar Association. In particular, I’ve been a vigorous advocate for the LGBT community, children, and disabled individuals.

A decade ago, I recognized that my passions and skills were particularly well-suited for service as an appellate judge, and I began preparing for this opportunity. For example, I’ve successfully argued appeals in the Washington Court of Appeals, the Washington Supreme Court, the Alaska Supreme Court, and the United States Court of Appeals for the Ninth Circuit. I previously received the highest rating – “Exceptionally Well Qualified for the Court of Appeals” – from multiple bar associations. 

I believe my broad legal experience has prepared me to serve on the Washington Court of Appeals. My perspective would also bring needed diversity to the Court of Appeals. 

I’m excited about spending the summer on the campaign trail, telling my story and introducing myself to voters. Please contact me if you would like to get involved in the campaign, or to join the inaugural list of individuals endorsing my candidacy.

Thanks,

Roger

A Simple Desultory Philippic

This week I’m hate-reading Sticky Fingers, a biography recommended by one of my favorite podcasts, the Slate Culture Gabfest.

Joe Hagen's book offers an up-close-warts-and-all view of Jann Wenner, the gay narcissist founder of Rolling Stone magazine. What piqued my interest was the Gabfest’s biting characterization of Wenner as the “ultimate Baby Boomer.”

My parents were born during World War II. They’ve been propelled through life by the Baby Boomers – benefiting from the economic bounty, while avoiding the icky baggage. 

I’m in the opposite situation. I was born in the first year of Generation X, right after the tail end of the busted Boom. My contemporaries and I have spent our lives deluding ourselves that the Boomers will eventually loosen their grasp on some tiny corner of the planet. Like Charlie Brown trying to kick Lucy’s football.

Younger Generation X-ers aren’t even tempted by Lucy’s football or other Boomer baubles. (Duh, all those tenured humanities professor positions are never going to open up.) These folks became jaded in their youth, without wasting energy on a pointless rejection-and-disappointment phase.

Millennials know better than anyone else that nothing will be left of the planet if and when the Baby Boomers finally leave. Millennials grew up with front row seats. Unfortunately, they also picked up many of their parents’ narcissistic habits.

Some days I feel like Job.

It’s not just the series of biblical plagues besetting me. My logocentric impulse can’t resist looking for meaning in any series of unfortunate events. I realize some of it’s my fault. A lot is just bad luck. But sometimes there are patterns.

Here is one story of how I keep being in the wrong place at the wrong time – usually because yet another Baby Boomer was occupying the space where I was trying to sit down.

I went to law school because I was a tortured gay Mormon English major who needed to escape from Brigham Young University.

This whole law thing has never been a perfect fit. I spent years in private practice, flirted with grad school, and moved to Chicago to be a gay rights lawyer with the ACLU. Along the way I explored academia, boutique firms, nonprofits, government, and other alternatives.

Eventually I concluded I would make a good judge, particularly at the appellate level, which is much more academic and writerly than most trial-level courts. Over the years I worked closely with judges and bar leaders, acquiring useful skills and contacts. And I sought out opportunities to hear about the various paths to the bench. Meanwhile, I was the longtime chair of the nonprofit organization promoting inclusion in the stodgy legal profession – working with numerous other bar leaders in our efforts to diversify private firms, government law offices, and the judiciary.

Everyone agreed I would never be confirmed as a federal judge in light of my activist background. My talents and temperament also are ill-suited for serving as a frenetic state court trial judge. I didn’t have the burning ambition to run for the Washington Supreme Court. But I concluded I could make an excellent addition to Washington’s intermediate appellate court, the Court of Appeals. Even though I’m not a Baby Boomer. 

This is Judge J. Paul Oetken of the United States District Court for the Southern District of New York. He’s not a Baby Boomer. In fact, he’s exactly my age. (I have more hair.)

Paul Oetken is the first openly gay man to be confirmed to a lifetime appointment as a federal judge by the United States Senate. Apparently when New York Senator Chuck Schumer learned of this glaring omission, he asked his staff for binders of gays so he could propose a candidate for nomination by the Obama White House. Shumer’s first choice was forced to withdraw because he’d worked on some controversial gay rights matters. (Hmm.) In contrast, Judge Oetken had a successful but bland legal career after graduating from Yale. 

Paul was a year behind me in law school. Mostly I remember him for stealing my friend Steve’s first boyfriend Pookie.

The last time I saw Paul was also my last trip to Lavender Law, the annual conference for LGBT lawyers and law students. As usual, I attended the session on “Pathways to the Judiciary.” Judge Oetken was one of the panelists. He recognized me, and came over before the presentation to tell me he’d followed my gay rights career since law school. 

In his remarks, Judge Oetken humbly acknowledged his good fortune. His career advice: becoming a federal judge is like being struck by lightning.

This is Judge Jim Verellan of the Washington Court of Appeals. He’s a Baby Boomer. Prior to his appointment to the bench in 2012, he was the court’s beloved longtime Commissioner.

Washington judges are elected by the voters. However, the governor fills judicial vacancies between elections, which is when they generally occur. Applicants are expected to pay their dues, and usually have to go through the grueling application process multiple times. Prior governors repeatedly passed over Judge Verellan. This was seen as his last chance for the job he’d patiently waited for.

I was one of the other applicants in 2012. The previous appointment to the court had gone to an African-American trial judge from Seattle. (Also a Baby Boomer.) Even though I hoped then-Governor Christine Gregoire would consider another diverse choice, I wasn’t surprised by Judge Verellan’s appointment.

This is retired Judge Kenneth Grosse of the Washington Court of Appeals. He’s my parents’ age. After serving on the court for twenty-nine years, Judge Grosse retired in 2014, a year before I took my ill-fated job in Bellingham.

Unlike the previous vacancies, this time there was no obvious front-runner. And there had never been an openly LGBT judge on either the Court of Appeals or the State Supreme Court. Like Charlie Brown, I dreamed this was going to be my year.

This is Judge Mary Yu. She’s another Baby Boomer.

In 2014, Judge Yu was serving as a respected trial judge in Seattle. She’s a tireless public servant. In particular, she reaches out to mentor other women, people of color, and LGBT members of the legal profession. For the last four years I’ve served together with Judge Yu on the Advisory Committee to QLAW: the LGBT Bar Association of Washington, as well as regularly working with her on other diversity and inclusion initiatives. 

While my application to the Court of Appeals was pending, health issues created an unanticipated vacancy on the Washington Supreme Court. To his credit, Governor Inslee appointed Judge Yu as Washington’s first openly LGBT appellate judge. Unfortunately for me, now-Justice Yu’s appointment sucked all the gay oxygen out of the room.

This is Judge Michael Trickey. He’s another Baby Boomer.

In 2014, Judge Trickey was serving as a distinguished trial judge in Seattle. Yep, the same bench where half of the Court of Appeals came from, as well as both Justice Yu and the Washington Supreme Court appointment before her.

Judge Trickey had achieved every possible professional success in his decades as a trial judge. He could have coasted for a few more years before retiring with his generous pension. Or he could have made a little cash as a highly paid part-time mediator. Instead, he applied for elevation to the Court of Appeals.  

The governor was presented with a crowded pool of well-qualified applicants. Every candidate other than Judge Trickey would have diversified the court in multiple respects – age, gender, race, national origin, professional experience, sexual orientation, etc. In contrast, Judge Trickey had virtually the same pedigree as Judge Verellan before him: 60 years old, great guy, smart, and spent the last few decades toiling in the trenches as a judicial bureaucrat. (He does have better hair). Perhaps most importantly, Judge Trickey was the former law partner of one of the Baby Boomer leaders of the same court, who lobbied hard behind the scenes for his friend’s appointment.

Sure enough, the governor appointed Judge Trickey to the Court of Appeals.

After spending less than four years on the appellate bench, Judge Trickey recently announced his retirement. 

This is Washington Governor Jay Inslee. He’s another Baby Boomer.

I voted for Governor Inslee. I think on the whole he’s been a good governor during a difficult time. I wish he were running for re-election.

After I was passed over for a judicial appointment, another judge I’ve worked with on diversity issues told me the governor “doesn’t really believe in diversity.” That seems harsh. I’ve seen examples of the governor’s efforts on behalf of historically under-represented communities. Nevertheless, as Maya Angelou said, “When someone shows you who they are, believe them the first time.”

So far, Governor Inslee has had two opportunities to appoint judges to the ten-member Court of Appeals bench, which covers most of Western Washington. Each time, the governor looked in the mirror and at the pool of candidates, and then picked yet another straight white male Baby Boomer. Together with the previous governor, that’s a streak of three heterosexual white male Baby Boomers – two of whom replaced diverse female judges on the court.

Systemic analysis becomes problematic when you focus on small samples and individual cases. There are numerous structural, statistical, and individual processes at work, as well as a lot of luck. As a participant, I’m worried about my own myopia, and the risk of merely “special pleading” for one’s own benefit, rather than identifying values everyone should be willing to live with.

But long before I became a victim of employment discrimination on the basis of my disability and sexual orientation, and before I began applying for judicial appointments, I spent many years advocating for the members of the hidebound legal profession to acknowledge the effect of implicit and structural bias, and to confront the continuing barriers to real change. I'm comfortable using Governor Inslee and his predecessor’s series of appointments to Division One of the Washington Court of Appeals as a case study. 

This is Judge Ron Cox. He’s a Baby Boomer. He’s also the first African-American to serve on the Court of Appeals. He wasn't appointed by the governor. Instead, he ran for an open seat twenty years ago, after working as a bar leader and a partner in a large Seattle law firm. Like me. 

Judge Cox recently announced he’s also retiring this year. For the first time, there are two simultaneous Baby Boomer vacancies on the Division One of the Washington Court of Appeals, the state’s largest appellate court. Hopefully the governor will finally think outside the box. And maybe the Baby Boomers are finally ready to move on.

At this point, however, I'm resigned to seeing not just me but my entire generation passed over. Governor Inslee will probably appoint Washington's first Millennial as an appellate judge. 

In any event, despite Lucy waving her football at me, I can’t apply for either vacancy. The Court of Appeals is one of the few positions in Washington with a statutory residency requirement. I no longer live in King County, which elects 7 of the court’s 10 judges.

This is Judge Mary Kay Becker. She’s another Baby Boomer.

Judge Becker currently occupies the only seat on the Washington Court of Appeals that I’m eligible for. The position is elected primarily by the voters of Whatcom County, where I now live, and where my family has lived for almost four decades. The riding also covers Island County, where I owned a house for fifteen years, before the road and my driveway slid down the bluff in a massive landslide. (Those damn biblical plagues.)

Unlike most of her colleagues, Judge Becker came from outside the judiciary. She brings the perspective of a former legislator and community leader. And she’s a good judge. She’s faced the voters multiple times, often without drawing an opponent. (Occasionally a young lawyer or a disgruntled crank will give her a little electoral work out.) I ran into her this month at a diverse lawyer reception.

Judge Becker’s position is up for election this fall. She faces mandatory retirement at age 75, which will occur before the end of the next six-year term. (So far the Boomers haven’t been able to flout the Washington Constitution, but with the state of things in the other Washington and in Beijing, I wouldn’t rule anything out these days.)

Presumably Judge Becker will run for re-election, and presumably she will win. When she retires mid-term, the then-governor will appointment her replacement. Unfortunately, the front runner in the gubernatorial race is Washington Attorney General Bob Ferguson – the same ambitious politician whose incompetent flunkies discriminated against me at my last job. I suspect I’d have a better chance being appointed as a federal judge by Donald Trump, and confirmed by Mitch McConnell’s Senate.

In Washington State, all candidates for elected offices must file their declaration of candidacy during a single week in mid-May. We’ll see what Judge Becker decides, as well as all the other ambitious and/or underemployed lawyers in town.

Should I throw my hat into the Court of Appeals race? I’m an experienced appellate attorney and a recognized bar leader, with a diverse background in private practice and public service. There’s never been an openly LGBT judge on the Court of Appeals. As far as I know, no governor has appointed a self-identified disabled person, particularly anyone successfully living with mental illness. And I’m still unemployed, with too much time on my hands – obviously in need of something to occupy me besides blog writing, parenting, chorus rehearsals, and drafting cover letters for HR professionals to ignore….  Hmm.

On the other hand, with my curse of plagues, what about the risk I’d immediately be struck by actual lightning?

Postscript

This blog welcomes responsible opposing viewpoints: