Oregon State Bar Bulletin — NOVEMBER 2005

Parting Thoughts
Judging in Oregon
By Jim Westwood

A real judge I’ve never been. High school mock trials, law school moot courts – that’s about the extent of it. Now that I’m reaching a certain age and satisfaction with the practitioner’s art, former aspirations to real judicial service are pretty much gone. With recent confirmation hearings in Washington raising our consciousness level, I think the time is right for this reflection on aspects of judging, from an Oregon lawyer’s perspective.

I know the appellate process best. Trial judging involves some obviously different roles, such as refereeing discovery and tactical trial tussles or dealing with non-lawyer jurors and witnesses, but a lot of the fundamentals are the same at both levels. Dealing with appellate courts in particular, I’d like to offer meditations on two subjects: 1) becoming a judge in Oregon, and 2) developing a coherent philosophy of judging.

On Becoming a Judge
The founders of Oregon probably would disapprove of how their plan for an elected judiciary has become essentially the Missouri Plan, but neither did they foresee an electorate so divorced from judicial politics that the undervote is a strong runner even in hotly contested races. The norm in Oregon today is a midterm resignation followed by gubernatorial appointment of a replacement from a list prepared by the OSB Board of Governors, followed by an uncontested election within a year or less. It’s rare that a justice or judge leaves a court at the end of his or her term and lets the political spirit of the Oregon Constitution hold sway in an openly contested election. Chief Justice Carson is an exception that proves that rule.

A show of hands, please – when a governor does make a midterm replacement appointment, is politics a prime consideration? You’re not cynical to answer "Yes," and I agree with you. No governor would ever deny that his or her appointee is the best qualified person for the job, but the subtext is always that politics played no role in the selection. I think the governor’s statement is correct only if the definition of "qualified" includes a substantial political dimension. I would argue that it should be that way – politics should drive a governor’s judicial selection as much as it drives the voters’ choice in an open seat election. The spirit of the Oregon Constitution requires it. It means that we shouldn’t carp when our elected governor nominates someone who shares his or her political views, or is representative of a particular segment of the bar that supports the governor, or changes a court’s ethnic or gender makeup one way or the other. No governor should shrink from admitting that a judicial nomination involves politics.

But please note that I used the word "nomination" instead of "appointment." There seems to be rank duplicity in the gubernatorial selection process, unless we acknowledge that "best qualified" does and should mean "best qualified on a combination of intellectual, temperamental and political grounds." That’s in fact what is going on, and there’s room for that honesty in the judicial appointment process if we add a safeguard: Appellate court nominees should be confirmed by the Oregon Senate.

The idea isn’t new, but every time it’s been floated, the governor’s partisans have been horrified by the notion that it would make the judicial appointment process (gasp!) political. Excuse me – the courts of Oregon are creatures of politics: Oregon Constitution Article VII and the Oregon Legislative Assembly. Appointments to the federal judiciary, which the gentrified framers of the United States Constitution wanted to keep away from popular politics, are nonetheless subject to the "political" scrutiny of Senate confirmation. It is much more appropriate that Oregon’s political system, which is Jacksonian and populist to its core, should check executive power with responsible participation by the legislative branch.

A Philosophy of Judging
Intelligence and temperament do count, along with politics, but when is the last time a candidate for the state supreme court or court of appeals tried to educate the voters with much else than sound bites? Okay, okay, you’re tough on crime. You’ve been a judge for umpteen years. You understand the needs of all Oregonians, not just those unnamed but apparently sinister special interests.

Fine, but would you mind telling us how you would decide a case? Are you committed to inductive reasoning instead of deductive rationalization from a conclusion that we often see in court opinions? Do you understand the role of logic in legal analysis, and do you understand logic? Show us you’re smart – answer some basic pop questions about the United States and Oregon Constitutions. Is your personal and professional life the sort that gives us confidence in your stability on the bench? Can you show us you’ve examined your own basic beliefs? All of those inquiries can be answered within the present Code of Judicial Conduct, which limits what a candidate can say. The same questions could be publicly aired in gubernatorial appointments, as they are not aired now, if Oregon Senate confirmation were made part of that process.

Let’s be honest with each other, and let’s talk about it. To the extent we as lawyers and judges haven’t embraced what I suggest above, I think the public’s trust in the appellate courts suffers needlessly. Let’s discuss the ability of politics openly practiced, and of personal judicial philosophy openly aired, to strengthen the bench in Oregon.

Jim Westwood concentrates his practice in state and federal appellate courts. Among the nearly 200 appeals he has handled are important cases in state and federal constitutional law, insurance, banking, energy, administrative, and punitive damages law.

© 2005 Jim Westwood

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