Selecting Oregon's Judges
| Jurisdiction | United States,Federal,Oregon |
| Citation | Vol. 33 No. 03 |
| Publication year | 2010 |
I. Introduction
How state judges are chosen is once again on the public agenda.(fn1) Media attention centers on judicial elections, especially when an incumbent appellate judge faces well-publicized opposition, either on behalf of competing candidates or in a retention election. We should ask whose interests may lead them to resist change in the state courts and whose interests may lead them to marshal change.
Recent developments have added urgency. Decades of extending modern media campaigns and their attendant financial demands to judicial elections eventually led to two unsurprising Supreme Court decisions. First, the Court declared that free speech principles apply to judicial as to other elections, and second, that recusal is a necessary effect of a judge's political indebtedness to major campaign contributors when such contributors have a stake in a case before the judge's court.(fn2)
The two constitutional decisions gave national impetus to what had long been sporadic concerns in one state or another.(fn5) The cause of reform in the name of "judicial independence" found its Paul Revere in the retired Justice Sandra Day O'Connor, who has rung the tocsin from Washington's Georgetown University in the East to Washington's Seattle University in the Pacific Northwest, where she gave the keynote address at a conference on state judicial independence.(fn6) I participated in the Seattle conference, as well as another conference soon thereafter in Salem, Oregon, in celebration of the Oregon Supreme Court's 150th anniversary. These were lively discussions before public audiences rather than presentations of scholarly papers (of which there have been many in recent years).(fn7) The following pages summarize a few personal observations on the topic of redesigning state judicial selection. They reflect experience with only Oregon's courts.
II. Refining the Issues
National attention to state judicial elections is welcome, but it cannot avoid oversimplifications.
First, current discourse describes election of judges as an issue of judicial independence.(fn8) This views the question through the eyes of incumbent judges. Independence, or impartiality, is essential, but elections and independence are separate issues-electing judges would be at least as problematic if judges were elected for life. Just as important is how judges are chosen in the first place. The commentary, both scholarly and professional, overlooks how a system that limits appointees to persons willing to run for election and excludes persons who reject this role skews the pool of potential judges.(fn9) Most statewide judges whom I know would never seriously consider entering an initial election for the position, and many would have declined an initial appointment if a contested election campaign had been a certainty.
Second, only contested elections to state supreme courts draw media and public attention, as is true for appointments to the United States Supreme Court. But what goals are common to selecting trial judges versus appellate judges, and in what respects should the selection differ?
Finally, a problem in discussing American institutions, like other multi-state systems, is to separate what allows generalizations from what differs from state to state. This applies to the selection of state judges as to much else. All state courts perform very similar functions by similar processes, often compelled by national standards of due process. The majority of state judges who face elections also face similar challenges in the nature and costs of modern campaigns. In other respects, however, those challenges differ greatly with a state's size, history, geographic and social diversity, competing interests, and political cultures. They include the political dynamics of changing old institutions, such as judicial elections. One must recognize what lends itself to a class picture and what requires individual portraits. This applies even to apparently similar states like Oregon and Washington.
III. Oregon's Courts
Oregon judicial history preceded even its territorial government, when the death of an early pioneer led his fellow settlers to elect one of their number-a doctor-as "supreme judge" with probate powers, so as to enable the passage of property titles to the next generation.(fn10) At the time, there was no alternative to some form of election, but when Congress soon thereafter created the Oregon Territory (reaching from the Canadian border to California and from the Rocky Mountains to the Pacific Ocean), presidents in Washington, D.C., appointed judges who might or might not spend their time in Oregon. Oregon's constitutional convention, one of the last before the Civil War, followed the models of Midwestern states in the Jacksonian tradition of popular election of all officials, including judges.
Originally, eligible citizens-adult, white-male residents-voted
Actually, no one demands that all Oregon judges gain office by initial election or that judges should be replaced after a limited number of terms. Given midterm retirements and other career changes, more judges are now selected by governors than by competitive elections. The Oregon constitution leaves these appointments in the governor's sole discretion. Most modern governors have awaited polls or other evaluations by state or local lawyers and consulted knowledgeable advisers before filling a vacancy. Without legislative confirmation of judges, local legislators do not play the role that United States senators do in selecting federal judges. In short, opponents of changing Oregon's judicial selection system can defend their nineteenth-century populist principles at little cost in actual practice. They benefit from responsibly appointed courts while maintaining the illusion that their judges are elected. Still, when a judge does run out his or her term, the resulting vacancy attracts candidates whose qualifications, beyond a winning name, voters are poorly equipped to assess. Often, the vacancy attracts candidates whose names are familiar from prior ballots for other political offices.(fn12)
The work of the Oregon courts has changed greatly in the past fifty, let alone one hundred and fifty, years. For generations, state judges presided over trials of conventional crimes and common law disputes about real property, contracts, and torts, as they still do. In some counties, juvenile matters, probate, and some misdemeanors were left to the elected county judge or justice of the peace.(fn13) Occasional review of a governmental action was an important but infrequent part of a judge's work which was complicated by an antiquated system of writs. Most state supreme court justices were former trial judges and saw their task mainly as examining whether the judge trying a case had made an erroneous ruling on a properly stated motion or objection, on whatever legal grounds the appellant briefed on appeal.
Their work changed with the growth of statutory, administrative, and constitutional law and with the creation of the Oregon Court of Appeals in 1969.(fn14) With that court handling the bulk of the caseload, the supreme court could devote its largely discretionary jurisdiction to resolving new issues or clarifying old ones. Because these tasks aim to guide decisions beyond the case before the court, they are less confined by what advocates argue and are more susceptible to divided opinions. Many appointees to the appellate courts now have had experience as judicial clerks or in Oregon's Department of Justice, rather than on the trial bench. But the same changes also put in...
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