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Originally published Thursday, October 4, 2012 at 8:53 PM

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Supreme Court candidates with similar passions stress their differences

Longtime attorney Sheryl Gordon McCloud and former Justice Richard Sanders are battling for an open seat on the state Supreme Court. McCloud says she has the right judicial temperament for the job, while Sanders says he has more experience.

Seattle Times staff reporter

Sheryl Gordon McCloud

Age: 57

Residence: Kitsap County

Education: Bachelor of arts in history, State University of New York at Buffalo, 1976; law degree, University of Southern California, Gould School of Law, 1984

Legal experience: Law clerk, federal appeals court 1984-85; large private law firm less than a year; public defender in Seattle and King County 1987 to 1990; private practice, specializing in criminal appellate law, 1990 to present, including a stint as an adjunct professor at Seattle University School of Law.

Website: www.mccloudforjustice.com

Richard Sanders

Age: 67

Residence: Vashon Island

Education: Bachelor of arts in political science, University of Washington, 1966; law degree, University of Washington School of Law, 1969

Legal experience: Practicing attorney, 26 years; Washington State Supreme Court justice, including an adjunct professorship teaching appellate advocacy at the UW law school, 1995-2011; state Supreme Court justice pro tem January 2011 to July 2012, along with legal consulting and expert-witness work.

Website: www.friendsofjustice.com

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At first glance, Sheryl Gordon McCloud and Richard Sanders seem to be similar candidates seeking a seat on the state Supreme Court.

McCloud, a longtime appellate lawyer, and Sanders, who formerly sat on the court and lost his position two years ago amid controversial remarks about race, both portray themselves as passionate defenders of constitutional rights. Both have worked to protect the rights of the criminally accused. Both know their way around the state court system.

Yet while acknowledging their shared views, they also cite their sharp differences as they battle to replace Justice Tom Chambers, who is retiring from the court.

Sanders, 67, says he has far more experience while McCloud, 57, says Sanders acted unprofessionally while on the bench.

Recalling his three terms on the court over 15 years, Sanders says he heard a broad array of civil and criminal cases while building an "institutional memory" that gives him a ready-made ability to apply precedents from past rulings.

"So I've lived it," said Sanders, who argued that McCloud's background is rooted in criminal cases when two-thirds of the court's work involves civil issues.

McCloud both disputes and embraces the label.

She says she has handled civil cases as well, from consumer protection to workplace-disability leave to civil racketeering. Moreover, she says, her experience in criminal appellate law is a plus, because few of the sitting justices have come from that background.

But the biggest question facing voters in the Nov. 6 general election, she argues, is who has the right judicial temperament for the job, which carries a six-year term.

Voters deserve a justice who will be fair and professional regardless of race, wealth or gender, she says, citing her 25-year "track record on those qualities as a lawyer and a person."

In contrast, she says, Sanders' record includes "intemperate comments" that surfaced when he served as a justice.

In 2010, McCloud says, Sanders inflamed racial tensions when he said certain minority groups are disproportionally represented in prison because they commit more crimes. In making the remark, Sanders referred to the groups having a "crime problem."

In addition, she says, Sanders sat on a public-records case the court decided to rehear in response to an allegation in 2009 that he stood to personally benefit in his own public-disclosure lawsuit filed against the state attorney general. Sanders publicly dismissed any suggestion of a conflict of interest before withdrawing from the reheard case.

He also stood up at a meeting of the Federalist Society in Washington, D.C., in 2008 and shouted "Tyrant! You are a tyrant!" at then-Attorney General Michael Mukasey after Mukasey defended the Bush administration's counterterrorism policies.

"Those are not examples of professionalism, they are not examples of objectivity, they are not examples of fairness," McCloud said.

Sanders says McCloud is attempting to fault him for not being "politically correct" all the time.

He has repeatedly said his race comments were misconstrued and argued he has a record of treating all litigants with respect, whatever their race or wealth. Among his court accomplishments, he says, was bringing about a rule limiting public-defender caseloads, establishing the minimum level of experience required and setting a minimum wage for the job.

In the public-records matters, Sanders says he did nothing wrong. The two cases were different, he got clearance from the court's ethics expert and received no benefit, he says.

As for the Mukasey incident, he says, it is unfair to "shoot the messenger" for publicly challenging what he viewed as the Bush administration's failure to investigate torture allegations and prosecute government officials.

"I am concerned about the rule of law," he said, "and I think every citizen should share this concern."

It is that emphasis on individual rights that has carried Sanders throughout his long legal career, and what he hopes will help him win one more term on the court. He would serve only one term because of the court's mandatory retirement age of 75.

"I think the court needs a voice like mine, someone that's concerned about the fate of the private citizen, that doesn't defer to the government and wants to have a level playing field," he said before the Aug. 7 primary election, in which he finished second in a four-candidate field with about 28.5 percent of the vote.

Over the years, his libertarian views have attracted a diverse mix of supporters, including criminal-defense attorneys, gun owners, property-rights advocates, abortion opponents, personal-injury attorneys and open-government proponents.

Despite name recognition and Chambers' endorsement, Sanders faces a tough challenge in his comeback bid. McCloud captured nearly 29 percent of the primary vote and is likely to pick up many of the votes cast for King County Superior Judge Bruce Hilyer, who finished third with about 27.5 percent and handily won in vote-heavy King County.

McCloud's law office is in Seattle and she enjoys wide support in King County's legal, criminal-defense and Democratic circles. She also has been endorsed by two prominent Republicans, former Gov. John Spellman and former U.S. attorney Mike McKay.

In the primary, McCloud posted solid numbers statewide, even in Sanders' Eastern Washington stronghold, and she has argued cases throughout the state.

In May, McCloud gained attention when she won a new trial for a man sentenced to death 18 years earlier in the killings of his wife and business partner in Clallam County. In an 8-1 ruling, the Supreme Court agreed with McCloud that prosecutors wrongfully suppressed evidence.

She notes the judge in that case has endorsed her.

As part of her work, she has argued on behalf of unions, the American Civil Liberties Union and the Washington Association of Criminal Defense Lawyers.

"I think that constitutional rights are really important," she said before the primary election. "I think they impact every part of everyday lives, from privacy rights to whether kids get a fully funded education."

She has said she would decide cases based on the facts, constitutional principles and the law. Her nonideological approach would help unite the justices, she says.

Sanders says the ultimate question for voters is who will best protect their rights.

"I am proud to run on my record," he said.

As of Thursday, McCloud reported raising more than $171,000 in campaign contributions and Sanders nearly $160,000.

Information from Seattle Times archives is included in this story.

Steve Miletich: 206-464-3302

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