Oregon State Bar Bulletin OCTOBER 2012
Rethinking Judicial Selection
I have read the “Judicial Selection and its Consequences” article by Cliff Collins in the August/September 2012 issue of the Bulletin .
I agree that the issue of how judges are chosen in Oregon is very difficult. I disagree that direct election is the way to go.
I recall a situation in Nevada where a judge up for retention who had received a large campaign contribution from one of the casino hotels was hearing a motion for summary judgment against that hotel. At the beginning of the hearing the lawyer for the hotel rose and introduced the president of the hotel to the judge. There was no reason for that other than to attempt to influence how the judge would rule on the motion. In another case, a highly regarded California judge was voted out of office in favor of an incompetent only because that judge had made an unpopular decision in a case before him. The problem is that elections (including contested retention elections) cost so much money that it is prohibitive for a person to run without major campaign contributions, often from deep pocket frequent litigants.
I also do not agree with the premise that the Founders had in mind that political speech (by the average citizen) had to be protected above all. It is my belief that the Founders did not trust the average citizen when it came to electing representatives. Voting initially was limited to propertied white men (and even then ballots were not secret so that it became general knowledge how one had voted). United States senators were not elected directly, they were elected by state legislators. And the members of the Electoral College were free to exercise their discretion, not committed to vote for a particular person.
I do not agree that appointment for life is the answer either. In Los Angeles there are several federal judges who routinely thumb their noses at their critics and there was one federal judge (now deceased) who was so senile that he kept a courtroom full of lawyers waiting for two hours and when he finally took the bench he didn’t appear to know where he was. There is simply no way to get rid of bad judges who have been appointed for life.
Perhaps Justice De Muniz has it right with a twist. A bipartisan nominating commission should be created to deal with both initial appointments and retention elections. With respect to initial appointments, the commission would submit a list of names to the governor but the governor would also be able to submit names to the commission for evaluation. With respect to retention elections the commission would evaluate whether a judge should remain on the bench and the commission’s evaluations would be submitted to the voters.
Peter M. Appleton , Salem
When It Reigns, It Pores
Three pages after Suzanne Rowe’s mea culpa in the August/September issue regarding the difference between lay and lie , I found a sentence beginning, “In the initial throws of elation…” Perhaps the author meant throes . Webster’s Third New International Dictionary, Unabridged (Merriam-Webster, 2002) defines it (in part): “a condition of struggle, anguish, disorder, or confusion characteristic of a transitional period.”
Craig Colby , Portland
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