Oregon State Bar Bulletin — FEBRUARY/MARCH 2002

A Natural Tension
Judicial independence and political accountability under the Oregon Constitution
By Edward H. Trompke

It should be remembered, as an axiom of eternal truth in politics, that whatever power in any government is independent, is absolute ... Independence can be trusted nowhere but with the people in mass. [Thomas Jefferson.1]
Jefferson's comment criticized the independence of the Supreme Court under John Marshall. His is one in a long line of criticisms that were embraced by the framers of Oregon's constitution. Today, many legal writers favor trust in an independent judiciary, and judges have earned trust through the years. There is unquestionably a need for judicial independence. But Oregon's constitution also provides for judicial accountability to the people. Accountability is not an evil, and can free judges of any perception of unfairness when difficult decisions must be made, especially when judges are asked to rule on increasingly political questions revolving around the most political of all topics: elections.
In November and December 2000, both the Florida and federal supreme courts were pilloried by political charges of judicial 'activism' or partisanship in a controversy that defined partisan politics. Those charges arose despite the fact that one federal justice decided against George W. Bush, son of the president who nominated him. Worse, a group was organized to unseat three of the Florida justices, apparently based on the judges' political party affiliation, and here in Oregon, the central committee of our largest political party (the Oregon Democratic Party) supports efforts to impeach the federal Supreme Court. Also in Oregon, court challenges to ballot measures embroil the courts in partisan political struggles.

Judicial independence helps free judges from political pressures - frees them from undue influence of the executive, the legislative and even the remainder of the judicial department. But in Oregon there is little constitutional support for independence from the people. Instead, there are express provisions, adopted over many years, asserting judicial accountability to the people through the ballot box. The only limit to that accountability has been the good sense of the electorate.

A SHORT HISTORY OF JUDICIAL INDEPENDENCE
Judicial independence is not an end in itself, but a means to protect individuals' rights. Protection of the courts is merely an intermediate step to protecting all people. That concept is stated in the Declaration of Independence and was adopted into state and federal constitutions. Today, however, judicial independence seems to have assumed importance for its own sake. Judge Learned Hand said that if judges exercise too much independence, they will lose most of it, and it will be 'well lost.' (See sidebar, page 12.)

The tension between judicial independence and judicial accountability has an old and honorable tradition in our culture - extending back centuries to at least 15th Century England when the Court of the Star Chamber (later a terrible abuser of its independence) was popular because it stood as a sturdy and independent alternative to corrupt common law courts.2

During the American Revolution, lifetime appointment of judges was adopted in the state constitutions of 1776, and later in the federal constitution, to create judicial independence and protect individual rights. This 'federal' system did not work well for long at the state level. The Republican (later Democratic) Party became an early critic of judicial independence almost immediately after Jefferson's presidential victory in Congress in 1801,3 because Federalist judges were perceived as imposing a political agenda through an unelected judiciary. And that is not what judicial independence was created for.

As time passed, the public perceived that judicial independence had grown into absolute power in several states. The people of most new states restricted judicial independence by making judges answerable to the voters through election. The Democratic Party was a leader in this effort, reflecting its policy to retain as many rights as possible to the people. Andrew Jackson, the consummate Democrat, is quoted as saying:

In England, judges should have independence to protect the people from the crown. [But not in America.] Here the judges should not be independent of the people, but be appointed for not more than seven years. The people would always reelect good judges.4

One of the few studies of state constitutional development before the Civil War points out that lifetime appointment of state judges simply did not work because judges exercised too much independence.

In each of the [five southeastern] states, the judiciary was attacked as being aristocratic, monarchical, and beyond the popular control. In South Carolina life tenure, the almost impossible mode of impeachment, and the relationship of the judiciary and the legislature were attacked… The people of Georgia felt the inferior courts had too much power... As a result, an amendment was proposed to the Constitution in 1819 creating a new Supreme Court of Appeals, the judges of which were to be elected by the people... Likewise the reformers of North Carolina … wished to make judges responsible to the people through elections for short terms and by easy removal from office. The county courts of Virginia were attacked as aristocratic and monarchical. They were cooptative in membership, and thus the office really became hereditary in certain families… The chief criticism of the Maryland judiciary was its life tenure and the fact that there was no easy method of removal.5

During this period Democrats, espousing the ideology of democracy (as the party was often called) controlled the South and much of the West, and secured the election of Jackson, Polk and Van Buren as President. Party members wrote and rewrote the constitutions of many states. In 1857, Democrats wrote the constitution of Oregon.

At the Oregon constitutional convention, the Democratic majority was accused of trying to 'cram' measures, including the article on judiciary 'down the throats' of the Whig/Republican minority.6 Oregon's constitution was based in large part on the Indiana constitution of 1851, and resolved political issues in the same ways as the Democratic southern states' constitutions. Judges were elected for Jackson's term of not more than seven years, and were restricted from overturning jury verdicts. Jury nullification of instructions on the law was proposed, but not adopted.7 One Democrat opined that the states would never go back to appointing judges.8 The Whig/Republicans were no supporters of judicial independence, noting that popular opposition had sprung up to oppose the 'judicial monarchy' proposed by a group that included the convention's Democratic judges.9

Judicial independence remained unpopular with many Oregonians and their political leaders. In 1894, Oregon's governor lashed out at federal judicial independence:

Our constitutional government has been supplanted by a judicial oligarchy.' He went on, 'If Congress, at its next session, would impeach the ... judges for the usurpation of the legislative power, remove them from office, and instruct the President to enforce the [law], the Supreme Court ... would never hereafter presume to trench upon the exclusive power of Congress.10

The die-hard Democratic governor believed that Oregon state courts usurped legislative powers by declaring statutes unconstitutional. The contrary position, that courts should broadly oversee legislation for constitutional infirmity, supported development of the doctrine we now call substantive due process. That doctrine was supported primarily by Republicans and other conservative elements whose ability to appoint judges allowed them to block popular, democratic innovation and reform.

Oregon was much like other states with Democratic tendencies - it leaned toward Populist and Progressive movements of the late 19th and early 20th centuries. Those movements inherited the Democrats' distrust of an independent judiciary.11 From 1889 to 1932, over 50 constitutional amendments were introduced in Congress to limit the terms of federal judges, or to elect them.12 Roosevelt's Progressive Party adopted a platform in 1912 that demanded 'restriction of the power of the courts as shall leave to the people the ultimate authority to determine fundamental questions of social welfare and public policy,' and went on to allow ratification, by popular vote, of state statutes declared unconstitutional. In the three-way 1912 presidential vote, Roosevelt finished second in Oregon to Democrat Wilson, who was also a progressive.13
By 1912, Oregon had already shown Populist and Progressive colors. Oregonians had adopted the initiative, referendum and recall. Recall of judges expanded accountability of elected judges to the people.

In 1910, Oregonians amended Article VII of the constitution, governing judges. Judges were now prohibited from overturning jury verdicts if any evidence supported them. The Oregon Supreme Court was prohibited from convicting a criminal defendant of a charge assessing a greater penalty than the trial conviction allowed. These changes reduced judicial independence from juries (the peoples' representatives). Oregonians also allowed the Legislative Assembly to create new courts, but made judges independent of legislative salary reductions.

In 1931, Oregon adopted non-partisan elections to wrest authority for judicial nominations from political parties. The result, in the Democratic-Progressive tradition, transferred authority to the people.

The system of filling judicial vacancies was adopted in 1857, and was not debated much until the 1930s and 1990s. The governor appoints judges, with only elections as a check or balance to ensure that the judiciary does not become a reflection of a governor's partisan political philosophy. In the 1930s, the Oregon State Bar proposed first that it should select the appointee,14 then that it prepare a list of persons eligible for gubernatorial appointment. Finally, it proposed initial appointment, followed by retention elections. Under Democratic-Progressive ideology, these changes appear regressive, taking choices away from the people. None passed.

In the 1990s, several initiative petitions were proposed that would reduce judicial independence. The proposals were primarily aimed at criminal justice functions of judges, but also addressed civil matters. These proposals had a common link, that groups of voters were dissatisfied with the justice system, and tried to assert political control over it, as the constitution allows. Sometimes the efforts succeeded.

That success could portend the result Judge Learned Hand described - that judicial independence will be lost if the public perceives that judges use it to adopt and execute policies that lack majority public support. This may be especially true of initiated measures. For example, Measure 11 mandated minimum criminal sentences. The public adopted it and recently refused to repeal it, expressing the perception that sentencing did not satisfy public needs. That perception may not be correct at all, or may not be correct from the viewpoint of lawyers,15 but it is the perception of the sovereign. And at least one judge agrees.16

JUDICIAL INDEPENDENCE AS A POLITICAL VALUE
Measure 11 was directed to solve the perceived problem, not to punish judges. The public did not view Measure 11 as reducing judicial independence, or if it did, the reduction was preferable to not jailing criminals. But part of the legal community perceives such initiated legislation as a threat to the judiciary. That view is a political view, not a legal opinion.

The amount of judicial independence that is 'proper' is often linked to the particular political or legislative decision in question. For example, many people hold conflicting beliefs about the authority of judges - the independence of judges - to overrule legislation restricting the rights to abortion and to carry firearms, or legislation requiring equal rights for homosexuals or eliminating affirmative action. Even reading the foregoing sentence often provokes a visceral, political reaction. That political linkage demonstrates that some kinds of judicial independence are political, not legal. And judges invite political interference with their functions when they rely on their independence to enter into the political process, especially popular elections and initiatives. Just as Judge Hand said.

Finally, lawyers have an interest in the issue that is not altruistic. We, and our clients, benefit if we can ask judges to make policy decisions that were once the exclusive province of the political departments of government. From that perspective, the bar is no different from any other special interest group.

THE CONTINUING STRUGGLE FOR BALANCE
The balance between judicial accountability and independence was in equilibrium from about 1940 to 1990. Then, accountability was threatened. In 1976, the Legislative Assembly referred, and the people passed a constitutional amendment to give more flexibility to the supreme court when disciplining judges, broadening the kinds of behaviors that are subject to discipline. The Voters Pamphlet did not mention any limitation on judicial accountability, and instead stated that there would be 'no lessening' of the recall power of the people. However, in 1990 the judiciary may have lessened the recall power when it upheld an expansive reading of its own authority to limit judicial campaign speech, relying on the 1976 amendment.17 One justice dissented. The recall may be affected because a judge facing recall can be prohibited from discussing issues that are important to the recall vote - important to judicial accountability. The rules of judicial conduct have since been rewritten, allowing broader discussion, but the scope of electoral accountability remains an issue.18
In 1997, 'new right' Republicans launched a bitterly opposed initiative petition to repeal the court's interpretation of the 1976 constitutional amendment, seeking unfettered free speech instead of the rules of judicial conduct. The proponents argued that judges are supposed to be accountable to the electorate. Opponents argued that judges need independence from political pressures. Both are correct, but neither side was willing to accommodate the views of the other. Polarization could not have been greater. Judge Hand suggests that such divided communities cannot be held together by judges, that they must come together politically, if at all, and that judicial constructs to supplant political reconciliation will fail.

THE FUTURE
The most straightforward way for judges to balance their accountability and independence is to look to Judge Hand, to clearly state and consistently uphold a rule that gives deference to the popular will.19 For example, the courts might ordinarily uphold initiated measures and referenda, and not entertain novel challenges to them.20 If judges do not defer, initiative petition drafters (and the people) may force the issue.21 The people have the ultimate authority to say what the law is, restrained only by higher law that protects individuals from popular tyranny, and Oregonians are not afraid to exercise their authority, sitting in an ongoing constitutional convention that votes at least every two years.

But judges must also not be intimidated into upholding majority rule. Judicial accountability incorporates the idea that a judge could be intimidated into upholding the 'tyranny of the majority,' a concept well understood by the convention of 1857. In fact, that rarely happens. The risk that it might happen was acceptable to the convention, in order to avoid the greater evil of a judiciary unaccountable to the people that could ultimately threaten democratic-republican rule itself, as described in the political folklore of the convention era.22

We members of the bar must recognize that the Oregon system is different from the federal system, and that judicial independence and accountability are exercised differently, but for the same purposes. Then, judges can make each system work. If we advocate for change, we should recognize that we are entering the world of political decisions, not legal ones.

JUDICIAL SELECTION
A final topic in judicial independence is judicial selection. Much has been written about how different methods of selecting judges provide independence and accountability: election, appointment or a combination of both.23 The debate over which method is best will never be resolved.24 In January 2001, the Conference of State Supreme Court Chief Justices held a summit on improving judicial selection. The summit attendees issued a Call to Action25 to highlight differences among the state systems, while preserving the purposes of judicial independence. Oregon should participate in that process.

CONCLUSION
Judicial independence and judicial accountability are both shields and swords, but both are intended to protect judges, to allow them to fairly decide all cases, and ultimately to protect the rights of every person. Oregonians have defined our judicial system with popular oversight not just over the laws, but also over judges. If we change that system, it is important to act judiciously. Whatever we do, we should follow our constitution in the spirit of Judge Hand, both judicially and politically. That would require little. Just trust in the people and a willingness to accede to rule by the majority, even when we disagree.

ABOUT THE AUTHOR
Edward H. Trompke is an attorney with Jordan Schrader P.C., a Northwest regional law firm. He routinely advises clients on matters involving governmental regulations, business issues and real estate matters.

ENDNOTES
1. Letter to Judge Spencer Roane, September 6, 1819. Original in Library of Congress.
2. Perry and Cooper, Sources of our Liberties (American Bar Foundation, 1959) pp.125-29.
3. The Electoral College tied. Rather than sue, the election devolved to the House of Representatives, which chose Jefferson over Burr on its 34th ballot.
4. Robert V, Remini, The Life of Andrew Jackson (Penguin Books, 1988) at 306, quoting Manuscript Ledger, George Bancroft Papers, Massachusetts Historical Society. Judge Williams expressed similar opinions at the Oregon constitutional convention. Carey, infra n.7, at 103.
5. F. Green, Constitutional Development in the South Atlantic States, 1776 to 1860 (University of North Carolina Press, 1930), at 189-90.
6. C. Carey, The Proceedings of the Oregon Constitutional Convention of 1857 (Oregon Historical Society, 1926) at 199; 204-05.
7. Id. pp. 194-95, 197-213, 313-16.
8. Id. at 195 (Delazon Smith).
9. Id. at 314 (Thomas Dryer).
10. W. Swindler, Court and Constitution in the 20th Century, The Old Legality, 1889-1932, at 3 (Bobbs Merrill Company, 1969) quoting Governor Pennoyer in American Law Review. Pennoyer had a longstanding personal dislike of Judge Deady that was reciprocated.
11. Remini, supra, n.5 at 307.
12. Swindler, supra, n.11, at Appendix B. None made it far in Congress.
13. R. Hofstadter, The Age of Reform at 133 (Vintage Books, 1955).
14. D. Frohnmayer, 58 Oregon State Bar Bulletin No 2, at pp. 9, 12 (1998), citing 3 OSB Bulletin 18-19 (1937).
15. OSB House of Delegates supported repeal of Measure 11.
16. See, The Oregonian, May 19, 2001, Op. Ed. of Judge Herndon, on sentencing Scott Dean Harberts.
17. In Re Fadeley, 310 Or 548, 560-61, 802 P2d 31 (1990) (Authority was also inherent in the court, implied in its creation.) See also, dissent, Id., 310 Or at 591-98
18. The court did not relinquish the authority to regulate speech it found in the 1976 amendment.
19. The rules about when courts give and withhold deference to the independence of other departments of government are fairly clear.
20. See, e.g. Armatta v Kitzhaber, 327 Or 250, 959 P2d 49 (1998).
21. An initiative petition has been filed to eliminate the 'separate vote' requirement of Armatta, supra, n.21.
22. See, L. Kohl, The Politics of Individualism (Oxford University Press, 1989); E. Foner, Free Soil, Free Labor, Free Men, (Oxford University Press, 1995); Green, supra, n.6.
23. See, www.abanet.org/govaffairs/judiciary/report.html (ABA study primarily about federal system).
24. See, www.fed-soc.org/ judicialelections.htm and www.fed-soc. org/judicialappointments.htm (debate within a conservative group.)
25. See, http://www.ncsc.dni.us/ SummitCalltoAction.htm.

For additional story, see 'The Last Flowers of Civilization'.

© 2002 Edward H. Trompke.

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