John Braun commentary: Shine light on governor’s court appointments by requiring Senate confirmation
Friday, May 1, 2026
If the Democrats’ new income tax ends up before the state Supreme Court, as many expect, the case will bring a heightened level of public interest in the justices themselves.
Taxpayers will understandably want to know more about the nine people who have the power to either uphold or overturn the most expensive tax ever approved in Olympia.
That makes now an appropriate time to look at giving the legislative branch a role in deciding who serves on the Supreme Court.
At the start of this session Republicans introduced Senate Joint Resolution 8207, which would require the governor’s appointees to the court to be subject to confirmation by the state Senate. Many of those appointed to positions in the executive branch already go through a similar process.
This change would bring Supreme Court appointments out of the shadows and into a Senate-committee setting. The people could see and hear for themselves how an appointed justice views important constitutional questions and leans politically.
Coincidentally, the income-tax situation makes it easier to explain why the court-appointment process needs reforming.
Our Democratic colleagues know the state Supreme Court has overturned every income tax it has ever seen — starting in 1933, most recently in 1951 — yet we noticed they didn’t seem especially concerned about that when pushing Senate Bill 6346 through.
The prime sponsor of the income-tax legislation said as much when we debated it on the floor of the Senate chamber. When I pointed out how SB 6346 has the same constitutional issues as the other failed attempts, his reply included a prediction that today’s justices would come to a “different conclusion.”
Unfortunately, that isn’t a difficult prediction to make seeing how our Supreme Court has been reshaped in recent years in a deliberate and thorough way — less by elections, and more through combinations of resignations and appointments.
It’s simple: a justice resigns, which allows the governor to appoint someone to fill the vacant seat. The appointed justice is viewed as the incumbent from then on, and anyone who follows elections knows what being the incumbent means.
Only three of the justices on the Supreme Court are there purely through elections. The remaining six, or two-thirds of those on the bench, were initially hand-picked by whomever was governor at the time.
Two were appointed by former Gov. Chris Gregoire, who had endorsed the failed 2010 initiative to create a high-earner income tax. That was the most recent try for an income tax until SB 6346 came along this year.
Two were appointed by Jay Inslee. His dream of a capital-gains income tax was blocked by Republicans for years until one-party rule returned to Olympia and fellow Democrats delivered it in 2021.
Governor Ferguson, who wanted the new state income tax, has been in office less than 16 months but has already appointed two justices. They will be on the ballot for the first time this fall.
Common sense tells us most if not all of these six justices gave the proper answers when asked privately about specific rulings and issues that could come before the court — like whether they would be open to overturning the landmark 1933 ruling that threw Washington’s first income tax out.
That kind of private knowledge could give Ferguson the confidence to call for a state income tax, as he did going into the 2026 session, knowing the high court would not get in the way.
The surest way for the public to also learn about a Supreme Court appointee’s leanings is through a Senate confirmation hearing. That could be immensely valuable given the very limited amount of information made available through the governor’s office when an appointment is made.
To be clear, it would take more than a Senate confirmation requirement in our state constitution to prevent a governor or series of governors from stacking the state Supreme Court so that it leans toward a particular ideology.
However, a change like the one proposed in SJR 8207 would let the legislative branch serve as a check on other two branches of government, while bringing badly needed transparency to what is now a secretive process controlled by the governor alone.
Also, if legislators are going to continue looking to the state Supreme Court for help on unconstitutional bills like the capital-gains income tax and now the income tax, a public confirmation process could give the people more of the information they need to hold both lawmakers and justices accountable.
Of all the appointments made by the governor, none has the power of a Supreme Court justice. The legislative branch, being closest to the people, should have a voice in deciding who serves temporarily on the high court until the voters can make their choice. That’s one way our judicial system can do better.
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Sen. John Braun of Centralia serves the 20th Legislative District, which spans parts of four counties from Yelm to Vancouver. He became Senate Republican leader in 2020.