Born: Wednesday, January 28th, 1931
Died: Friday, May 2nd, 2008
Birthplace: Sidney, Nebraska
Education: Yakima Valley College, A.A. (1950)
University of Washington, B.A. (1953)
University of Washington, LL.B. (1954)
Career: Selah School Board (1960-1972)
Washington House of Representatives (1962-1966)
Trustee, Eastern Washington University (1966-1968)
Served: Monday, November 20th, 1972 to Monday, January 9th, 1995
Chief Justice: Monday, January 12th, 1981 to Monday, January 10th, 1983
Political Party: Republican
Appointing Governor: Evans (Republican)
In 1972 Governor Daniel J. Evans appointed Yakima attorney Robert F. Brachtenbach to the vacancy created by Justice Marshall Neill’s elevation to the federal district court bench. The governor and attorney were friends and colleagues, serving together in the state legislature in the 1960s. Over the years the governor had appointed Brachtenbach to important study commissions and had consulted him on Republican party matters. The justice described his relationship with Governor Evans in these words:The Governor and I had served together in the legislature. When he became Governor, I was our party’s whip in the House and worked closely with him throughout the legislative session. After I left the legislature, I served as his appointee to a college board of trustees, I was chairman of his Conference on Education and was appointed as one of his representatives to the Special Levy Study Commission. In addition, I worked with him for some years at the county, state and national level of political matters. In view of the foregoing, the Governor had had ample opportunity to form his own evaluations of my abilities. That was the most important factor in his appointment of me to the Supreme Court.
The governor had considered Brachtenbach for an earlier appointment to the court when Morell Sharp resigned to move to the federal bench, but Evans chose King County Superior Court Judge Robert Utter, largely because he wanted to balance geographical representation on the state’s high bench. In 1968 Brachtenbach turned down an Evans offer to join the newly created court of appeals. Soon, however, he “became more frustrated in practicing law simply because of the volume and the pressures and all the private practice problems” and he reconsidered a judgeship. Assured of support from the bar association, Brachtenbach contacted the governor and informed him that he was now eager to don judicial robes: “I’ll take it if it’s on the supreme court.” Anticipating Judge Neill’s resignation, Governor Evans looked for an eastern Washingtonian to replace the Pullman native. Geography, which had worked against Brachtenbach earlier, assured his selection this time.
Evans’s office announced the appointment on September 5, but Neill delayed his resignation to complete writing assigned opinions. Neill finally resigned on November 16, and the Yakima attorney took his oath of office on the twentieth. At age forty-one, the new judge became one of the youngest to serve on the court.
Evans and Brachtenbach had also wanted to postpone the swearing-in for political reasons. If they delayed until after the filing deadlines for the 1972 elections, Brachtenbach would not have to face the voters until 1974. Ironically, the legislature changed the law, requiring Brachtenbach to run for his post in 1973, when he handily defeated Auburn attorney Dale Sawyer. In 1976, 1982, and 1988 the justice ran unopposed.
Little in Brachtenbach’s background suggested he was destined for the judiciary. Born in Sidney, Nebraska, on January 28, 1931, he was the youngest of three sons. His parents, Henry and Elizabeth, were wheat farmers. Victims of the dust bowl and the depression, they sought work in Washington. Robert attended public schools in Wishram on the Columbia River in Klickitat County and in Yakima, graduating from Yakima High School in 1948, and from Yakima Valley College in 1950. He crossed the Cascades and enrolled at the University of Washington, graduating with a B.S. degree in 1953 and an LL.B. from the law school in 1954.
Chance played a role in his becoming a lawyer. He and a high school friend, Phillip Trautman, later a law professor at the University of Washington, were assigned an English class essay on their future aspirations. Robert had thought of becoming a pharmacist, but Trautman suggested writing about being an attorney. The study of law sounded “more complicated” and if both wrote on it they could help each other. The research apparently convinced Robert that law held more promise than pharmacy.
Following graduation from law school, Brachtenbach taught legal research and writing at the University of California Law School for a year. In 1955 he returned to Selah, near Yakima, to begin private practice. Real estate, banking, the legal concerns of farming cooperatives, and commercial trial work constituted the bulk of his practice. He also became a specialist on the commercial code.
Republican politics attracted Brachtenbach. He attended a number of state conventions, serving as parliamentarian and a member of the rules committee. In 1962 voters elected him to the Washington House of Representatives, where he served two terms. He became a legislative leader, serving as Republican whip in his second term. Because of his hectic legal practice, he did not stand for reelection in 1966. He served as a Richard Nixon delegate at the Republican presidential nominating convention in 1968.
Brachtenbach’s political background, although relatively short, explains to a great extent the course he followed on the supreme court. A satisfying political experience required compromise, a broad search for guides to public policy, and a smooth working relationship with colleagues. To a great extent, Brachtenbach carried these legislative attributes with him to the court.
The justice regarded himself as a moderate in most matters that came before the state’s high bench. In criminal appeals, however, he was conservative. He prefered to leave the resolution of policy issues to the legislature, but understood the need for judicial intervention in some public policy matters. Judges, he felt, had a special responsibility to keep the common law viable and consistent with contemporary economic and social developments. He expressed this creative cross-fertilization of politics and judging in the following way:
Public policy, whatever its changing perimeters, has been and is and should continue to be a fundamental, vital, and persuasive element of jurisprudential philosophy and technique. Otherwise, ours would be a rigid and sterile judiciary deprived of the societal values inherent in public policy considerations … Indeed, public policy is an unruly horse but appellate courts are astride it.
Justice Robert Finley served as Brachtenbach’s role model on the court. Although Finley tended to be more liberal and activist, Brachtenbach admired his decisional style and realism. To both judges, the policy role of the state’s court of last resort had to be recognized. Like Finley, Brachtenbach believed that:
Some policy views do in fact emanate from the collective experiences and values of the members of the court. Integrity of the process demands that we admit value judgments are inherent in the decisional structure. We need to concur with Holmes that “[t]he life of the law has not been logic; it has been experience.”
Once having admitted that, Brachtenbach felt judges could then act more responsibly. On policy questions they should consult the work of scholars outside the legal field-exercising care in the use of facts that may not stand the test of the adversary process-and must “identify the goal to be achieved by application of a perceived public policy.” Blaming policy decisions on the law or on the constitution rather than on their own perspectives is not the path to a responsive and responsible judiciary.
According to the results of a survey of former law clerks and experienced appellate attorneys, Brachtenbach was slightly liberal regarding economic and civil rights issues, and middle of the road concerning whether an activist or restraintist role is proper, despite his recognition of the need to keep the law contemporary by referring to public policy.
Although claiming he was not reluctant to write dissents, Brachtenbach seldom filed them, preferring, when in disagreement, to cast a concurring or dissenting vote. He was usually motivated to write a dissenting opinion only if a possibility for persuading four others to join him existed. On occasion he would draft a dissent to “improve the majority opinion,” but often did not file the draft. The justice was reluctant to use the dissent simply to provide a forum for minority views. Winning over the majority is important, and Brachtenbach’s low dissent rate failed to reflect those occasions when he picked up enough votes to become the majority, or compelled the majority to make changes. His views of dissent clearly suggest a collective rather than individual orientation.
His commitment to the Court as an institution also was an important factor in his behavior. The court, according to Brachtenbach, should not appear too divided too often:
After you have been around here for a while, you begin to get a sense of an institution. You really do. You realize that you walk out of the [conference] room and in two days of hearings … you’re all over the place in terms of philosophy. You argue with your best friend and your best friend challenges you and your next best friend etc…. Pretty soon you realize that it is important that we carryon this thing, that we do get the job done. Conversations are very heavy in there.
Sometimes I walk out of there so proud of that court. People will just go to the floor on issues, and walk out of there as friends. “Ok, let’s put this together. Let’s do it cohesively.”
Compromise, consultation, and persuasion, learned from his legislative days, characterize his style. Several of his former law clerks remembered that Brachtenbach believed the important concerns of the other members of the bench were to be written into his opinions. He did not lobby for his views, but often consulted with other members of the bench on wording, emphasis, or interpretation. As one clerk put it, “He works and thinks individually, but once he has reached his own conclusions, he seeks the opinions of others.” While serving as chief justice, Brachtenbach became even more concerned with compromise and persuasion.
In conference, the justice took one of three approaches. First, when sure of his viewpoint:
I don’t ordinarily talk very long in conference. I’m confident that people know I’ve done my home work and therefore it will go or not … I just want the collective judgment. Occasionally, I’ll say “the issue is very simple. It’s a ‘yes’ or a ‘no’ question and frankly in my own mind I can’t write it ‘no.’ I’ve got to write it ‘yes.’ “
However, many times cases are simply not exciting: “You look at it and this isn’t going to impact the law… We’re not going to make any new law.” The justice remained largely uncommitted in such cases. The best cases, requiring collective deliberations,
are those that we … go back and forth … as we try to make some kind [of] logical solution. Lots of our problems up here are insoluble. They really are. We shouldn’t be in the business. It should be across the street [with the legislature].
Justice Brachtenbach had an open relationship with his law clerks. They were included in important aspects of his deliberations. When he first arrived at the court, he drafted nearly all of his opinions alone. But later, as confidence in his clerks increased and as pressures on his time intensified, a sharing of responsibility evolved. The law clerks now drafted the first version of roughly half of the justice’s assignments. Then a give-and-take process followed, with both the clerks and the justice researching, revising, and editing, resulting in a collective final product.
Brachtenbach’s decisional standards reinforced his consensual style. The views of the other justices rated highest among his decision references. The work of the reporting judge was also significant, while the briefs and oral arguments of the attorneys, although important, rank low as sources. Interestingly, he ranked socioeconomic and political factors last despite his attitude regarding the role of public policy.
Brachtenbach served as chief justice from 1981 to 1983. He established the first Board of Judicial Administration to create a cohesive policy group for all levels of the court and radically revised the procedures by which the court adopted rules. Observers of the inner workings of the court regarded his term as chief as innovative and effective.
For eight years he headed the statewide project of computerizing court records. His work is evidenced in Washington’s high ranking among the states in rationalizing docket data and utilizing computers, which facilitate the keeping of accurate records and speed the judicial process.
Justice Brachtenbach has been variously described as “spirited,” “restless,” and “independent.” The pipe-smoking jurist was an enthusiastic conversationalist, an entertaining storyteller, an engaging master of ceremonies, and an avid reader. He filled his spare hours with painting, photography, sailing, writing, rock collecting, and wood sculpting. Many of his photos, oils, and watercolors now hang in his Temple of Justice chambers. He also designed his office furnishings, from the desk to an inlaid hardwood floor. The justice had a home on the beach near Ocean Shores and spent many off-bench hours doing homework away from the hectic environment of the temple.
Brachtenbach married Nancy R. Clark, daughter of Yakima attorney George E. Clark, in 1951 and they became parents of five sons. They divorced in 1975. The judge married Marilyn Hammond, then serving as staff director of the senate Republican caucus, in 1977. A psychologist, she was the first woman to serve as deputy secretary of the state senate.
Although people occasionally urged Brachtenbach to return to the political arena, he had grown to appreciate the important role of the state’s high court and was satisfied being a member of that bench. The challenge of achieving the proper balance between political and legal considerations in the court’s deliberations attracted him to the judiciary in the first place and continued to hold his interest.
Selected References
Brachtenbach’s oral history is in the supreme court collection, Washington State Archives. Also see Seattle Post-Intelligencer, 11 Jan. 1981; news release, Governor Daniel Evans’s office, 5 Sept. 1972; Washington Supreme Court “Induction Ceremony Program,” 20 Nov. 1972; and Charles Sheldon, “An Interpretation of the Judicial Process: The Washington Supreme Court as a Small Group,” Gonzaga Law Review, 13 (I977), pp. 97-139.
Additional Information:
Died May 2, 2008 at the age of 77.
[See controversial decision from the 1980's involving the Washington Public Power Supply System]
The preceding biography is from Charles Sheldon's The Washington High Bench: A Biographical History of the State Supreme Court, 1889-1991, © 1992 by the Board of Regents of Washington State University. Reprinted here with permission and licensed to the public under a Creative Commons Attribution-Noncommercial-No Derivative Works 3.0 United States License by The Temple of Justice Project.
