Why Oregon Judges Should Be Appointed

The surprising top-two finish by Nena Cook and Dick Baldwin, who outspent a third challenger for an open Oregon Supreme Court seat, is part of the reason for a study to consider appointing judges.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.

De Muniz pointed to the surprising result last week of the three-way race for an open Oregon Supreme Court seat. In that race, Oregon Appeals Court Judge Timothy Sercombe, who won the endorsement of all 10 daily newspapers that made endorsments in the race, finished third. Sercombe also was the top choice in an Oregon State Bar preference poll.

The top two finishers, who will vie in the November election, are Dick Baldwin, a Multnomah County Circuit judge, and Nena Cook, a Portland attorney with little judicial experience — though she worked as a prosecutor and was president of the Oregon State Bar in 2005. Baldwin, who worked as a legal aid attorney, won political support from a number of unions and metropolitan area sheriffs. He also was supported by Oregon trial lawyers.

De Muniz emphasized all three candidates are qualified to serve on the Supreme Court, but he said the race was apparently decided based on who spent the most. Baldwin and Cook outspent Sercombe.

De Muniz has asked the Oregon Law Commission to study appointing judges instead of electing them. He wants its report completed before the 2013 legislative session. One idea he has floated is creation of a nominating commission to consider judgeship candidates. The commission would send up to five qualified nominees to the governor who would make the appointment.

While I didn't earn Continuing Legal Education credit for De Muniz's seminar, I found it deeply interesting and timely, as our tour group maneuvered among Greek islands where new political elections loom that could determine whether Greece, on the verge of bankruptcy, remains in or departs the European Union.