(The Center Square) – Criminal defense attorney Karim Merchant is positioning himself as a candidate willing to challenge what he describes as an establishment culture on the Washington Supreme Court.
Merchant, a former King County public defender who now operates his own practice, is challenging Chief Justice Debra Stephens for Position 7. Family law attorney David Shelvey and tax attorney Todd Bloom are also running, but only the top two candidates will advance to the fall election.
Stephens has sat on the left-leaning court since former Gov. Christine Gregoire appointed her in 2007, and five of her eight peers sitting on the bench were also initially appointed by Democratic governors.
The crowded August primary comes as a lawsuit challenging the state’s new income tax moves through the courts.
Merchant said that, if elected, he would “apply the law as written” rather than making decisions based on “partisan politics and ideology.” He argues that the Supreme Court needs a fresh perspective from someone who has spent their career representing the people rather than corporations or government.
In a recent interview with The Center Square, Merchant discussed his judicial philosophy and a lack of experience as a judge, the court’s role in tax litigation, his thoughts on the Quinn ruling, which upheld the state’s capital gains tax as an excise tax rather than an income tax, the Blake decision and more.
The following Q&A has been edited for length, clarity and readability.
The Center Square: For voters just starting to pay attention to this race, can you explain your judicial philosophy and why you decided to run for the Washington Supreme Court?
Merchant: My judicial philosophy is pretty straightforward: follow the Constitution.
I feel like, over the last couple of decades, our Supreme Court has strayed away from its institutional responsibility, which is to faithfully interpret the Constitution, responsibly consider the separation of powers and respect the rule of law.
I believe the opinions from the Supreme Court have become politicized over the years. If elected, I would be the voice of reason on the court, and I intend to bring an unseen level of transparency.
Since I filed on May 8, I have had an opportunity to really examine the history of the Supreme Court.
I’ve followed the court for quite some time because of my practice as a criminal defense attorney, but when you start to look at the policies and decisions that come out, especially on tax and spending, it is clear to me that the Washington Supreme Court is applying inconsistent standards.
When it comes to tax increases, the court makes it incredibly difficult to invalidate them. When it comes to relief, like the $30 car tabs, they use a different standard that makes it easier to invalidate.
Washingtonians need someone who will fight for them when nine lawyers make decisions behind closed chambers. I believe I’m the one who is going to be fighting for them.
The Center Square: You’re up against Chief Justice Debra Stephens, who has served on the bench for years. Why should voters replace her with someone who has never been a judge?
Merchant: What sets me apart is that I’ve been in the trenches.
For the first 15 years of my career, I was a public defender in King County Superior Court. When it comes to the criminal justice system, whether you’re a prosecutor, public defender or judge, we’re all lawyers, and we all feel a sense of duty, but we do it for different reasons.
I wasn’t a public defender because I’m an abolitionist or because I’m trying to tear down the system. I did it because it is necessary. I believe the system can work as long as everyone does their job.
I wanted to represent real people. I have experience in the trial court, having been trained by the best, working with the best colleagues, and going up against the best prosecutors. I know what it’s like to be in the trial court creating a record. I don’t think my opponent has that type of experience.
She has done a ton of appellate work and, in my opinion, is one of the smartest lawyers we have.
Stephens has an exceptional legal mind. There is no dispute about that, but I don’t know that she has ever been in a trial court, on the ground, representing real people and understanding the impacts of Supreme Court rulings. I think I can distinguish myself from everyone else running right now.
The Center Square: Your campaign emphasizes that you’ve represented individuals rather than corporations or government entities. Why is that background valuable for a justice?
Merchant: It seems like corporations and institutions are often the ones that get a seat at the table, and everyday people get left behind.
In our democracy, five out of nine lawyers decide the law. They have the final say. Right now, we don’t have that type of representation on the Supreme Court.
All of my clients have struggled in some way. I’ve represented small business owners. I’ve seen parents lose their children. I’ve represented juveniles in juvenile court. I’ve represented the mentally ill. I’ve represented so many different walks of life, and I’ve seen what they go through.
My upbringing is somewhat unique. I was born in Cleveland, Ohio. My parents are immigrants and were working class. We always had a roof over our heads and food on the table, but we struggled financially. We had to work for everything we got.
There are many Washingtonians who have lived that same walk of life, and that representation is not on the Supreme Court right now. I believe I would bring that.
The Center Square: You’ve argued that the court needs a different kind of candidate. Do you believe Washington has a partisan or establishment judiciary, and if so, what would you do differently if elected?
Merchant: Yes. I do think there is an establishment.
I feel like our court clearly leans left. They use double standards on issues that generally come down to whether someone leans left or leans right. People need to have confidence that when they go to the Supreme Court, it’s not political and that the issues being decided have not been prejudged.
Everybody will always look at the outcome. That’s fair. We are an adversarial system. Someone wins, and someone loses, but the justice system is about process.
It’s great that our justices engage in social media and outreach. I applaud many of the ways they do that, and I want them to continue, but there are instances where I think they show a political ideology.
For example, last year, the governor and the Legislature had a Pride flag-raising ceremony in front of the Capitol and the Supreme Court. I don’t take issue with the substance. I’m talking about process.
The governor and Legislature don’t have impartiality embedded in their oath as the judiciary does.
At least three justices were there, joining the governor and the Legislature. This year, the courts promoted a similar event hosted by the governor. I think it gives the appearance that issues that could come before the court have already been prejudged.
The bench hasn’t decided any issues relating to trans rights. That’s going to be on the ballot as an initiative, and it will likely be challenged and go before the court. When you see justices hoisting this flag up in front of the Supreme Court, it feels like they have already made up their mind on that issue.
The Center Square: When it comes to taxes, spending and state fiscal policy, where do you believe the court’s role begins and ends?
Merchant: The judiciary’s job is not to substitute its judgment for the Legislature’s.
My judicial philosophy is to apply the law as written. The people elected legislators to make laws. That is their job. They use precise words when they make those laws, and it’s the job of the judiciary to interpret them. It is not art. It is not subject to the eye of the beholder.
The court’s job is to read what the Legislature has passed and follow that law.
I find many instances where the Supreme Court inserts language into a statute to ascertain intent. I think that’s problematic. The court should not piece together what it subjectively believes the Legislature intended, because that allows justices to insert their own political ideology.
The Center Square: In Quinn, the court upheld Washington’s capital gains tax by ruling it was an excise tax rather than an income tax or property tax. What did you make of that ruling, and what, if anything, do you believe Stephens and the majority got wrong?
Merchant: If something is an excise tax, the Legislature has complete discretion. They can tax that to the moon. They can tax and tax, and there is nothing that can stop them from imposing an excise tax, which is generally a tax on the benefit of using something or some transaction.
A great example is a car. We have the privilege of using a car, so the Legislature can tax things related to cars, whether it’s gas or car tabs. That is within their constitutional authority, but they are incredibly limited in their ability to tax property, and prior court rulings recognize income as property.
The Quinn decision determined that capital gains are not income and that the tax is an excise tax.
Step back and think reasonably about this basic business concept: If I buy something for $2 and then sell it for $3, I have a $1 profit. I have a $1 gain. The Supreme Court is saying that $1 gain is not income.
The IRS sees it differently. That took me back for a second.
Then you start thinking about whether the capital gains tax is really an excise tax. If it taxes the transaction, yes, that would be an excise tax, but it only taxes the transaction when there is a gain. It doesn’t tax the transaction when you break even. It doesn’t tax the transaction when there is a loss.
So, is that really an excise tax? Any time it takes 52 pages to explain why capital gains are not income or property, you have to unpack it. It’s trickery. I think the Supreme Court got Quinn wrong.
The Center Square: A lawsuit over the state’s new income tax is expected to reach the bench. Without asking how you would rule, how should justices approach tax cases where the Legislature’s view of the law conflicts with arguments about constitutional limits?
Merchant: Washington has about 93 years of precedent holding that income is property, and I think the procedural posture of those cases is often overlooked.
In 1930, the Legislature and a majority of the people amended the state Constitution so that property is everything subject to ownership. Two years later, our Supreme Court held that income was property.
The Constitution is incredibly hard to amend, and they came together in the most democratic way to accomplish that. If they wanted to create an exception for income, they could have included income.
When you look at the 1933 ruling as a whole, where is the argument that income is not property?
The Center Square: In Blake, the court struck down Washington’s felony drug-possession law, leading to major public-safety and legislative fallout. What did you take away from that decision?
Merchant: There are two ways to look at the Blake decision: as a constitutional decision, which I believe it is, and correctly decided, or as a political, outcome-driven decision to legislate from the bench. I’m not convinced of the second one.
In criminal law, to be guilty of a crime, you generally need conduct and intent. The Legislature defines what is criminal, but generally speaking, it has to have both.
The drug possession statute in Blake made it a felony to possess any controlled substance, but as written, it did not say you had to knowingly possess drugs. It only said you had to possess them.
That criminalizes innocent conduct.
Imagine there’s a dealer packaging drugs and they ship them through the mail, and the mailman is about to deliver the drug dealer’s mail to the drug runner. Under this statute, he’s guilty of a felony for possessing those drugs that he didn’t know were there.
The Legislature should have included a mens rea element to comply with due process. The Supreme Court had no choice but to strike it down as unconstitutional, and I believe that was correctly decided.
When critics say Blake created costs for taxpayers, I put that 100% on the Legislature. They pass the laws. They decide what is criminal and what is not criminal. The Legislature had been warned more than once that there was a constitutional problem and did not fix it.
The Center Square: You recently posted about proposing a new court rule. What rule are you proposing, what problem are you trying to solve, and why is that something the Supreme Court should address through rulemaking rather than leaving it to the Legislature?
Merchant: One rule I suggested was to create a new plea, specifically with misdemeanors and maybe even felonies: a no-contest plea.
Right now, the available pleas through court rules are guilty, not guilty and not guilty by reason of insanity. Why not add a fourth plea that says no contest?
Through the rulemaking process, the court could hear from stakeholders about which crimes should be excluded. I think DUIs and most domestic violence offenses would be reasonable to exclude.
But there are other crimes where we could make this possibility available. If someone enters a no-contest plea, it is a conviction and goes on their record. But after a specific period of time, the court could administratively review it and, if that amount of time has passed, dismiss the case.
It would expedite the court process. Convictions would still happen and stay on a person’s record for a period of time, but maybe we need to start thinking about new ways to resolve cases that are less serious than domestic violence and DUI.
I think that would significantly reduce caseloads.
The Center Square: The Northwest Progressive Institute’s recent poll had Stephens leading at 18%, you and Bloom at 8%, Shelvey at 6%, and 60% of voters were still unsure. What do you take from that survey, and what should voters be asking heading into August?
Merchant: Are you sure? I was happy to take 6% because I’m the least known. I’m the only one who has never run before, so I’ll take it either way; 6% means I’m only down 12 points, and 60% of voters out there still need to ask themselves one question: Are they satisfied with the status quo?
I would invite them to vote for one of the other candidates if they think their judicial philosophies are the answer. Suppose they consider what I have to say and still vote for someone else, great. That’s how democracy works. I’m glad they’re making informed decisions, which rarely happens in judicial races.
I’m thrilled to be where I am. I hope I can reach those voters. The poll is really promising. I would expect, for a chief justice who has been on the court for 18 years, that she’d be much higher than 18%.
It’s encouraging that 60% of voters are pausing. Maybe every other year, they relied on endorsements, filled in the bubble or didn’t bother because judicial races are at the bottom of the ballot.
People are starting to realize this election is going to shape Washington law for potentially generations.