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A Modest Proposal for Selection of Oregon Judges

2012; Albany Law School; Volume: 75; Issue: 4 Linguagem: Inglês

0002-4678

Paul J. De Muniz, Philip Schradle,

Law, Rights, and Freedoms

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) I. INTRODUCTION 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. …