Academic journal article Albany Law Review

A Modest Proposal for Selection of Oregon Judges

Academic journal article Albany Law Review

A Modest Proposal for Selection of Oregon Judges

Article excerpt

Politicians and scholars worldwide have long been impressed with the fragility of judicial power. 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"--the ability to coerce compliance. In the absence of these tools, courts really have only a single form of political capital: legitimacy. (1)


In 2010, Justice Sandra Day O'Connor provided a keynote address for a symposium conducted by Seattle University School of Law entitled State Judicial Independence--A National Concern. (2) In that keynote address, she stated: "While our judiciary has always faced significant attacks, the single greatest threat to judicial independence now is fairly modern, and it's uniquely American. It's the flood of money coming into our courtrooms by way of increasingly expensive and volatile judicial election campaigns." (3)

I share Justice O'Connor's concern that the special interest financing of judicial elections has the very real potential to fatally erode the public's trust and confidence in the impartiality of the judiciary. (4) In my last State of the Oregon Courts address presented to the Salem City Club in January 2012, I stated that:

   So far, Oregon has been spared the financial arms race that
   typifies the funding of judicial election campaigns in many
   other states. Unfortunately, these judicial campaigns are
   becoming too political, characterized by exorbitant spending,
   the involvement of national special interest groups, and a
   blizzard of misleading attack ads that mask the true
   interests of the sponsors. Selecting judges through this kind
   of political process, with its inflammatory rhetoric and
   demagoguery--erodes public confidence in the impartiality of
   all judges. Polls consistently show that the public believes
   that judicial campaign contributions pay off for donors. A
   2010 Harris poll found that more than seventy percent of
   Americans believe that campaign contributions influence
   courtroom outcomes.

   History proves that our constitutional system of government
   has endured because the public and the other branches of
   government acquiesce to judicial authority. They have
   confidence and trust in the impartiality and the
   independence of judicial decision-making. In other words,
   decision-making free of outside political or economic
   influence. However, the special interest financing of judicial
   campaigns in states across the country has the potential not
   just to erode, but to destroy our children's and
   grandchildren's trust and confidence in our courts.

   We should not wait for the nuclear judicial arms race to
   strike here. (5)

Indeed, I believe that these threats have already established themselves as reality in many different manifestations around the nation. I present below a few examples that I hope suffice to set out the contours of the concerns I feel are present. And then I present for consideration a modest proposal (6) for the selection of judges that

I think addresses many of those concerns.

By way of brief backdrop, however, I think it important initially to state directly the important role that courts serve in our society. At the time of our nation's founding, Alexander Hamilton stated:

   The complete independence of the courts of justice is
   peculiarly essential in a limited constitution. By a limited
   constitution I understand one which contains certain
   specified exceptions to the legislative authority; such for
   instance as that it shall pass no bills of attainder, no ex post
   facto laws, and the like. Limitations of this kind can be
   preserved in practice no other way than through the medium
   of the courts of justice; whose duty it must be to declare all
   acts contrary to the manifest tenor of the constitution void. … 
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