A cruise ship in the middle of the Aegean Sea may seem an odd place to launch the idea of appointing rather than electing Oregon judges.
But "A Modest Proposal for the Selection of Oregon Judges" was an onboard lecture topic of former Oregon Supreme Court Chief Justice Paul De Muniz, who is touring the Greek islands along with members of the Willamette College of Law faculty (and me). De Muniz will join the faculty after he retires from the bench the end of this year.
The independence of judicial systems and integrity of individual judges has made international headlines, most recently in Pakistan where that country's high court challenged Prime Minister Yusuf Raza Gilani for failing to pursue corruption cases against the president.
Many argue the rule of law and even democracy itself aren't possible without an independent judiciary. Yet judicial systems are inherently vulnerable.
"Politicians and scholars worldwide have long been impressed with the fragility of judicial power," De Muniz says. "When it comes to securing compliance with their decisions, courts are said to have neither the power of the 'purse' — the ability to raise and expropriate money to encourage compliance — nor the power of the 'sword.'"
In the absence of these tools, De Muniz adds, "courts really have only a single form of political capital: Legitimacy."
The legitimacy of courts can be undermined by politicization of the process of selecting judges. A recent example is a judicial race for the Wisconsin Supreme Court that occurred at the same time Scott Walker was running for governor on a platform of limiting the ability of public employees to organize.
Wisconsin judicial candidates accepted only public funding for their campaigns, so didn't receive contributions from groups or individuals, but that didn't prevent the Club for Growth from spending $300,000 to support the conservative incumbent judge and union activists raising another $300,000 for his more liberal challenger. The campaign was ugly. One ad skewered the incumbent for his failure as a district attorney earlier in his career to prosecute an alleged pedophile priest.
"Reforms must occur," De Muniz says, "because the current election process makes judges indistinguishable from the rest of the American political process" as they attract large campaign contributions, independent expenditures by interest groups and scads of advertising. He noted some judicial candidates have edged close to the free speech restriction included in judicial conduct rules by hinting how they might rule in certain cases.