Unpacking Oregon’s Judiciary

Cascade Commentary


The ways in which Oregon judges are selected and held accountable lead to exaggerated partisan control of thecourts. Reforming the selection process would restore Oregonians’ confidence in the fairness of the judiciary.

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The spectacle of Oregon courts overturning citizens’ initiatives on purely technical (if not trivial or even trumped-up) grounds has led many citizens to question the legitimacy of the entire judicial system. One does not have to look at what the courts do, however, to feel uncomfortable about the possibility of political bias. One has only to examine the makeup of the courts themselves.

Fourteen of the seventeen current members of the Supreme Court and the Court of Appeals made it into office, not by being elected, but by being placed there by Democrat governors. Throw in the fact that almost all were chosen from the narrow pool of lawyers in the Portland-Salem-Eugene corridor; add that, as a practical matter, a judge can never be voted out of office; and any ruling on a politically charged topic is automatically suspect, at least to the hundreds of thousands of Oregonians who feel they are not represented on the courts. Despite initial appearances, though, this is not a partisan issue. It is a consequence of the way we select judges and hold them accountable to the public.

“Fourteen of the seventeen current members of the Supreme Court and the Court of Appeals made it into office, not by being elected, but by being placed there by Democrat governors.”

Because the Supreme Court is concerned about the appearance of judicial bias, it forbids judicial candidates from discussing anything important about themselves, their opponents or their political philosophies. Unfortunately, this prevents voters from knowing enough about candidates to cast meaningful votes and makes it almost impossible to run an effective campaign against a sitting judge. No matter how corrupt, inept or politically biased a judge may have shown himself, no challenger can ever raise the issue.

This leaves open elections, in which no one is running as an incumbent, as the only practical way for a non-judge to win a judgeship. But given the governor’s power to appoint new judges to complete the unexpired terms of their predecessors, open elections rarely occur. As long as a governor of his own party is in power, a judge planning to leave office has only to resign and let the governor choose a replacement to make sure the party keeps the judgeship. Then, when the term expires, the new appointee can run for election with all the built-in advantages of secrecy and incumbency.

Because Democrat governors have been in power for the last twenty years, nine of the ten judges on the Court of Appeals were appointed to office by Democrats. Of the seven justices on the Supreme Court, four were put there by Democrats.

Add to these the current Chief Justice who was elected to the Supreme Court only after having been appointed to the Court of Appeals by a Democrat, and fourteen of the seventeen members of Oregon’s appellate judiciary were placed in office by Democrats.

“One way to solve this problem…would be to require members of the appellate system to serve by district.”

Partisan skewing works both ways, of course. In 1957, after Republicans had controlled the governor’s office for seventeen years, six of the seven justices on the Supreme Court had been appointed by Republicans.

With interim appointments the only realistic way to achieve a judgeship, the pool of candidates for judicial office has narrowed to those lawyers in a position to impress the governor. Consequently, almost all current members of the appellate judiciary were chosen from the Portland-Salem-Eugene corridor. In a state whose politics are sharply divided along geographic lines, this leads to assumptions of regional bias that undermine the authority of the judiciary as a whole.

One way to solve this problem, without getting into a dispute with the Supreme Court over the best way to regulate the judiciary, would be to require members of the appellate system to serve by district. Measure 40 on this fall’s ballot would do just that.

There is nothing unnatural, unjudicial or un-Oregonian about requiring judges to serve by district. Every trial judge in the state already serves by district. Only the seventeen members of the appellate judiciary are currently exempt from this requirement.

The system we have now leads to an exaggerated partisan control of the courts, and undermines its own legitimacy by giving many Oregonians reason to believe they are not represented on the judiciary. It is not a healthy situation. Measure 40 is designed to correct it.

Bill Merritt is a contributing editor for Liberty and has written about political matters for BrainstormNW. A former Portland attorney, he is the author of two books, Where the Rivers Ran Backward, and most recently, A Fool’s Gold. Cascade Policy Institute is a think tank based in Portland, Oregon.

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