Representation and the Law: Interview with Justice Helen Whitener

In this re-broadcast, Crystal talks with Washington State Supreme Court Justice G. Helen Whitener about her path to the state supreme court, what the job of a supreme court justice actually looks like, and why representation matters in our court system.

A full text transcript of the show is available below, and on the Hacks & Wonks blog at www.officialhacksandwonks.com.

Find the host, Crystal Fincher on Twitter at @finchfrii. More info is available at officialhacksandwonks.com.

References:

Claiming your identity by understanding your self-worth, TEDxPortofSpain talk by Justice G. Helen Whitener https://www.youtube.com/watch?v=57FMau29O_g&list=PL3vudArV4R9e5USALmWYa4v38zP_2nviP 

Full Transcript: 

Crystal Fincher: [00:00:00] Welcome to Hacks and Wonks. I'm your host, Crystal Fincher. On this show, we don't just talk politics and policy, but also how they affect our lives and shape our communities. As we dive into the backstories behind what we read in the news, we bring voices to the table that we don't hear from often enough.

Well today on Hacks and Wonks, we are very thrilled to be speaking with Justice Helen Whitener today. And Justice Whitener currently serves on the Washington State Supreme Court. She was appointed this past April by overnor Inslee and is running to finish the term of her predecessor which is a term that will last two remaining years. So prior to this, Justice Whitener served as a judge on the Board of Industrial Insurance Appeals for two years, followed by five years of service on the Pierce County Superior Court, beginning in 2015. Thank you so much for joining us Justice Whitener. 

Justice Whitener: [00:01:04] Thank you so much for having me. 

Crystal Fincher: [00:01:06] So I just wanted to start out and get an understanding of how - what your role was - what your path was to the State Supreme Court. How did you get there? What is your background? 

Justice Whitener: [00:01:20] Well, my background is very varied. I started in law school, working for the Attorney General's office. I worked for the Department of Corrections, it was called back then. And then it became the Criminal Justice Division. From there, I got to Pierce County working for the Attorney General's office in their DSHS division, and I did dependencies and those types of cases out at Remann Hall here in Pierce County. By the time I graduated law school, I had 25 trials under my belt - and that's jury trials, because I also worked as a City of Tacoma prosecutor, Rule 9 prosecutor we call them - when you're in school and you're under the supervision of an attorney. 

So by the time I graduated, I had over 25 trials under my belt. I then had a job waiting for me with the City of Tacoma prosecutor's office. But unfortunately there was a hiring freeze that year, so I had to find a job and I found one at the City of Olympia prosecutor's office, but it was a part-time job. So while I was working there - I stayed there for about six months - my supervisor there, who's now a judge in Thurston County, Kalo Wilcox - she had contacted the prosecutor out of Island County prosecutor's office on my behalf. I interviewed with him over the phone, got the job, and literally was driving from Renton, where I resided at the time, to Island County - two and a half hours each way. I decided that was too much, so I moved to Island County and I stayed there for a little over a year working at the prosecutor's office. While there, one of the attorneys I worked against in Pierce County - he was a public defender - contacted me and we were chatting and he said, Where are you? And I said, I'm out in Island County - I'm a prosecutor here. And he said, Are you interested in coming back to Pierce County? But I'd need to do public defense - I'd never done defense work, so I jumped at the opportunity. One, I wanted to come back where my roots were, and two - do defense work, public defense work.

Came back, worked there for over two and a half years. I was doing a murder case with one of their top public defenders, Dino Sepe. And we were doing this murder case together. I was then recruited by the prosecutors we were up against - one is now a judge and he is - what is his name? It slips me right now, but it was against him and one of the top prosecutors there, Dawn Farina, and Jerry Costello - that's, that's who the judge is now, but he was a prosecutor then. And I actually went back to prosecution after that murder trial was completed, right here in Pierce County. So I've worked in Pierce County and it's really interesting, Crystal. I have been a prosecutor, a public defender, as well as a private defense counsel, but I've also been a judicial officer on all the trial level courts. So that's Municipal Court, District Court, and Superior Court. Because when I finished at the prosecutor's office - I stayed there for over two years, I believe - I then started my own firm and it was a solo practice for a few years. And then I took on two partners and it became Whitener Rainey Writt, and we handled Class A felonies - actually all levels of criminal matters, as well as some civil cases. And then we also had an appellate attorney. She was the writ in the practice and she was a law professor out of Seattle U Law School, who joined the practice. So I did that for eight years, but while I was doing that, I also pro-tem as a judge - and that is someone who sits in for a sitting judge when the judge takes leave. I was a pro-tem judge on the Municipal Court here in Tacoma, the City of Tacoma Municipal Court, as well as the Pierce County District Courts. So I have the unusual background of having been a prosecutor, defense attorney, and a judicial officer on all three trial level courts here. And then in 2015, the Governor appointed me to the Superior Court, as you've stated. 

Crystal Fincher: [00:05:55] Well, and that varied experience seems unusual for any kind of justice related to State Supreme Court, the national Supreme Court. Is that unique to have that much and that varied type of experience, coming to the bench? And how do you think that makes a difference in your approach versus others? 

Justice Whitener: [00:06:21] I think it is unique. You have judges and justices who have done one side, and you may have a judge -  I don't think we have any justices - that have done both sides. But what is truly unusual is to have done all three, on all three level trial level courts, which is what I have. And I think the unique perspective it gives me is I have a very intimate knowledge of the trial level courts and what the courts face on a daily basis, having gone through it on both sides, as well as sitting on the bench in those courts as well. And yes, it is unusual, but I think being an immigrant that's probably.. 

Crystal Fincher: [00:07:06]  

Well, and it will probably do well right now just to - most people don't have a lot of exposure to the State Supreme Court or to a lot of courts - except for at the Supreme Court level, hearing that there was a major case decided - but they may only catch the headline and not know the details or understand what's really involved with being a justice. So what are you responsible for? What is the job of a justice like on a daily basis? 

Justice Whitener: [00:07:36] Now I can answer that question, but I will preface it with this. My ascent to the Supreme Court is truly unusual because we're faced with COVID right now. And the pandemic has caused the workings of the court to be a little different. So when I got appointed, I got appointed in a virtual world. So I have not sat on the bench with my colleagues yet, yet I've sat through a term and I'm getting ready actually, we just started the second term. So I literally will be going through one year of being a Supreme Court justice, and never sat on the bench with my colleagues. We hold oral arguments in a virtual world. So my experience right now may be a little unusual and maybe very different than what is considered normal. But in regards to cases, we handle - just about any case comes to the Supreme Court, can come, is whether or not we accept it for review, it has to meet certain criteria.

And I'll give you an example. If there is a decision on the law court, the court of appeals - the first intermediary court before you get to the Supreme Court - but it's the court between the trial court and the Supreme Court. If a case is heard in Division One - there are three divisions - and they come down with a decision one particular way. And then in Division Three, a very similar case with very similar issues comes before Division Three, and they come down a different way as far as interpreting the Supreme Court's decision that everyone should be following. Then the court will take that up because it's clear there's a conflict between how the court on the appellate level is interpreting a Supreme Court opinion. That's one very simple example. Another set of cases we hear are personal restraint petitions. In criminal matters, the defendant, after conviction, has a number of remedies available to him or her, but once they've exhausted all those remedies, they still have an opportunity to request a review by the Supreme Court. But then again, they have to meet certain criterias - it has to be done within a year on a number of those cases, if you're going to do a collateral attack of your underlying conviction. So that's another type of case that we hear, but we hear literally just about any type of case that can come before the court - is whether or not it is worthy of review. Is it going to have substantial public import or public interest? Is it going to affect a large section of the community that we are serving? Those types of things. Is it something that is worthy of review - is the easiest way to conceptualize what it is the Supreme Court will look at. So many cases come before us wanting review, but not many get review because they are not meeting the criteria that is necessary for review. 

Crystal Fincher: [00:10:52] That makes sense and in those discussions, I'm assuming that there are discussions between you and the other justices, do your backgrounds - does your professional experience, lived experience inform how you process what is important, what may be significant, how something affects a lot of people. How do your experiences, and I guess, how do the justices themselves help inform what kinds of cases get chosen or the approach to that? 

Justice Whitener: [00:11:32] So that's a wonderful question because yes, we get a number of cases, but judges and justices are human beings. We have our backgrounds that we bring to the table - not just our legal backgrounds - but our lived and lived, as you indicated, background. And when we sit and assess a case, we are doing that through our lens, whatever lens that is, we bring to the table. So, and that's your experiences as well. So being a Black woman may be relevant in some instance, depending on the case or the issue before the court. Being an immigrant may be relevant and it may be an experience others don't have - which in this case they don't, because I was born an immigrant. I was born in Trinidad and Tobago, so I am an immigrant. I'm not an immigrant descent. So my perspective may be a little different. LGBT - being someone who is not of the mainstream sexual orientation may my lens may be different from some of my colleagues . Identifying as disabled - depending on the case, I may be seeing it through accommodation eyes, whereas they may not because they don't have that experience. So I think our experiences, whether it's even on the Supreme Court or even on the lower trial level courts or the appellate courts, is relevant in regards to assessing cases that come before the court - because our experiences are different, which means the way a decision may impact a particular subset of the population may be relevant on a particular issue regarding the particular facts that come before the court. So I think it's extremely important. 

What's wonderful about the Washington State Supreme Court is it is the most diverse court in the United States. When I joined, we became the most diverse court. I don't think it was just because I joined, but I think I had a little bit to do with it. So we have five white individuals - four of them women, one white male. That's unusual because normally the Supreme Court benches are heavily white male. Then we have one Latino male, one male of color. We have one Asian/Mexican 'cause she's biracial and Supreme Court justice. And she's also openly gay. So she brings that experience to the table. We then have one, and the only, Native American Supreme Court justice in the country. And then you get me, the first black female, the fourth immigrant born, the second LGBT, but the only black LGBT judge in the entire state. So the discussions that we have and the depth of the discussion and, and the amount of citizenry we can cover is amazing. And we really work through the cases, trying to make sure we don't leave anyone behind. And what's important as well too, is economics - none of us, or not all of us, were born with a golden spoon, or however they say it. We have gone through struggles, different types of struggles economically, at different points in our lives and some more recent than others. So that is also very important to the discussion because we always try to make sure that we're not leaving anyone out in the decision as much as we can. Because of course, sometimes you just can't cover everyone under the law. But the law was meant to embrace and cover all of its citizenry and that's something we really try to do. And I'm really proud of my colleagues when I got there and saw that's how they approach things.

Crystal Fincher: [00:15:55] You're listening to Hacks and Wonks with your host Crystal Fincher on KVRU 105.7 FM.

And I appreciate you talking about the composition of this court and the diversity of the court. And I watched the announcement of your appointment live - and a number of people I know did - and there were certainly lots of excited group chats and posts and you know, My goodness, I'm watching a Black woman be appointed and oh my goodness, a new LGBT member! Just excitement across the board. And I've seen similar excitement, like you talk about, having the only Native American justice in the country. And LGBTQ representation. And how important that is to people or why it feels meaningful - I think you talked about - it gives people hope that there will be - that the court will become more accessible, that the court will become more fair , that the law will serve and consider and account for more people, more types of people, the entire community, and ...

Justice Whitener: [00:17:10] It builds the trust and confidence in the institution. Having representation at the table when these serious discussions and issues are being addressed, builds trust and confidence in the judiciary, in the legal system. I remember when I was a litigator walking into a courtroom and I'm the only Black person in the courtroom. Or I'm the only woman in the courtroom. Or my client is the only person of color. The jury pool not reflecting who we are. So it really builds confidence in the judiciary and in the decision. Not everybody is going to always get what they want. That is not what the law is about. But the law is about trying to bring well-reasoned decisions based in the law and taking into account real-life experiences so that the decision has useful meaning to its citizenry. That's truly important. 

Crystal Fincher: [00:18:18] It's critically important. And so I guess, where do you feel like we're at right now in terms of everyone being served fairly and equally by the law, and what can be done to improve where we're at right now? 

Justice Whitener: [00:18:39] Well, it's not working and it hasn't been working for years. And it probably won't work for everyone for a while. The hope - and that is the end goal - is to be the court or the legal system that truly encapsulates everyone. That is not the reality. And the Supreme Court, after the killing of George Floyd, put out a letter to the community. I don't know if you are aware of that and the letter. 

Crystal Fincher: [00:19:17] I am aware of it. And it was - I know a lot of people were surprised and heartened by it. It was unique. 

Justice Whitener: [00:19:25] Yes, it was. And it was well thought out, but what was really important for people to get from that letter - is that all nine justices signed it. Didn't have to - all nine justices signed it. And when we sign something, it says, We believe in it, we support it, and we're putting our badge, our signature, on it. And that is what I think resonated with everyone in the legal community of the judges in other states, who have been trying to get their judiciary to acknowledge, that there is an inequality in how people are treated in our legal system. And unfortunately it has taken recent incidences on our media - different mediums - for our population to see it. People have been saying it for years, but to have it be acknowledged in such a vivid way was shocking. And that is what the law is about - when you see something like that occurring, it is time for change, because it's a systemic issue that has not been resolved with whatever mechanisms we were using before.

So now is the time - and the legal system has really jumped on this. I actually, to be honest, was surprised at how much the legal community jumped on this. Because they realize - those who did not work within the trial system, the trial level courts - I think they were surprised at some of the things that had been occurring in the trial level courts. And it is causing the legal system to take a hard look at itself because this is how one subset, and there are many subsets, but this is how one subset - Black people - have been treated in the legal system that has been validated for everyone to see. The question became, What are you going to do about it? You have a responsibility to act. This was not a time to be silent. This was not a time to be complacent. This was a time to act. And the court acted. Well, what we did not envision is the legal community was waiting for that and they are now acting. They're now assessing the system. And hopefully we will have some changes take place and it will not just be for Black people. When people try to make this a Black people thing, that is very disturbing to me. This is a people problem. Unfortunately, it took a Black man losing his life - and Black men and women losing their lives - and this being shown on such a high medium - social media click - oop, everybody's seeing it. It took that scenario to have change, or have the discussion occur. But any change that occurs is going to be helping everyone, because unfortunately Black people, we have been at the bottom of the bucket. So if you help us, you're only making it better for you. So that's the kind of change that I see happening. That's the change I've always wanted to see, even when I was a litigator, but I realize now, as I moved up in my profession, my voice became stronger because I've always been very vocal and visible. My voice became stronger and now I can actually participate in - at the big people table, so to speak. And not only just have a say, but have their ear, because it's one thing to sit at the table - and I've been at many tables where you're talking and ain't nobody hearing, or somebody takes what you just said, reconfigure it, and it sounds like it's just something that just came out of their mouth and you're sitting there going, Am I the only one seeing that they just kinda stole what I just said, but now they're hearing it, whereas when I said it, they weren't.  And that has happened to many women as we move up and we're in this room with a lot of men, unfortunately - that's what they like to do. That is changing, you know? So as I move up, I realize my voice is not just being heard anymore. They're actually listening and trying to understand - and I'm doing the same too. 'Cause I'm learning a lot about differences as well, because I'm - in an odd way, I've always tried to see similarities. So for me, this is unique because I'm now seeing differences. And I think that's a good thing for me. 

Crystal Fincher: [00:24:41] Absolutely. And you're doing this - you talked about your - you are doing the work of justice right now. And also, you are running a campaign and you're going to be on the ballot in November. And so what's that like? And how is your campaign going? 

Justice Whitener: [00:25:05] Well, running a campaign in a virtual world is different. I've ran one campaign before and that was 2012, but in 2020, in this virtual world, that's different. In 2015 I was up for election - I didn't get an opponent. 2016 - didn't get an opponent. I got out there and I connected with the community anyway, 'cause it's just something I like to do. But this year that's different and I'm having to reach out through Zoom and virtual platforms. And to be honest, that's the correct thing to do right now. It is just too deadly of a virus to take a chance, not just on myself and my family, but on others. So it's been difficult, but I'm connecting. And I'm connecting in a way that I've always connected, which is - if this is the platform, Justice Whitener, formerly Judge Whitener - I'm going to be there, we're going to chat, let's have a discussion. And I love talking about the law. This race is a little different, not just because it's the virtual world, but I have an opponent. Remember I didn't get one in 2015 or 2016, so that's different. What's unique as well is my opponent was recently sworn in as an attorney, just when I got appointed to the Supreme Court. So he has never practiced law as an attorney, which means he's never practiced law because to do so without being certified by the bar is illegal, so he has never practiced law. He just passed the bar - in April, he got sworn in - in February, I think he passed the bar. He graduated law school, I think, 20 years ago when I - I graduated in '98 - he graduated, I think in '99 and failed, and then decided to go into education. Why he decided to run now is anybody's guess, but our Constitution actually does not prohibit him from running. To run for an appellate level position, you have to have at least five years of being an attorney. For the Supreme Court, you don't. So it is very important to me, this election cycle, that I inform people of what could happen if I don't prevail. You could have someone sitting on the Supreme Court who has never practiced law, and that can make it rather difficult for the other individuals, but most importantly, what can happen to our law. And I'm very vested in the law - and to make sure that it's held in high esteem, that it should. So campaigning this year is a little different - that's an understatement. 

Crystal Fincher: [00:27:58] Well, and it certainly is different. If people do want more information about you, they can head over to justicehelenwhitener.com and learn all about your campaign and read more about you. But you bring up a really interesting point about your opponent and that he hadn't practiced law, hadn't been a lawyer before this campaign, and the surprising bit of information that being a State Supreme Court justice actually does not require that, even though other levels do. And especially at a time right now when, I think a lot of people are looking at the people who we are electing and placing in positions of power, and looking at the difference between those who came with experience and a resumé that people were able to look at, and judge the value of similar work, and use that to inform how future work might be. And then looking at people who were elected, who did not have experience , and also seemed to make a decision out of the blue to run, and the consequences of that. That knowledge actually does count and experience actually does count. Lots of things can be knowledge and lots of things can be experience, but it is important to understand the role that you're taking. And so, having none is certainly at the very extreme of the end, but also, as you talked about in the beginning, you are actually on the other extreme - of lived experience and professional experience and the variety of experience , and how that is able to help you see more of the community, more of the impacts and effects of the law , and how important that is.

Justice Whitener: [00:29:55] Yes, the law is very difficult. The intricacies of applying the law - it takes experience. If I had just gotten out of law school and tried for the Supreme Court and got onto the Supreme Court, I don't think I would be able to do the job, one. And even if I was to try to do the job, I would be a burden on the system because I would not be pulling my own weight. It really does take experience. It's like going to medical school or going - getting a pilots license - just because you have the license does not mean to say you can fly a commercial flight without an experienced pilot at your side. All professions have that learning curve to get to the highest position. So people can look at that and make whatever decision they like, but also think of the impact it can have on your life. Because most cases that are heard in the State come through the trial level court - family law cases, criminal cases, civil cases, and I've handled all of them - they're complex cases. Asbestos cases with 15 co-defendants - I've handled those. And then when those things go up to the high court for final resolution - because the lower courts may have made a mistake here or there, that's not something you learn overnight. That's not something you get in a textbook at law school either. It really comes from experience. So we'll see what happens in November. 

Crystal Fincher: [00:31:45] Well, I appreciate the time that you've taken to speak with us today. I could listen to you forever, but unfortunately, we've come upon the time for this show today. So thank you so much for being willing to serve, thank you for all the work that you've done in the community and on the bench, even the virtual bench. And just am excited to see how this campaign unfolds and to see how this new term turns out. Thank you very much, Justice Whitener. 

Justice Whitener: [00:32:14] Thank you, Crystal. Thank you for giving me the space where my voice can be heard. I appreciate you.