Oregon State Bar Bulletin — DECEMBER 2006

Justice on Trial
The gathering storm
By Edward J. Jones

One purpose of an anniversary is the opportunity it provides for reflection. The first Monday in December is the anniversary of the founding of the judicial branch of the State of Oregon, for it was on that day in 1859 that the Oregon Supreme Court held its first session. This December issue of the bar Bulletin provides an ideal forum for a discussion of the health and direction of our judiciary.

We will remember 2006 as a watershed year in the history of Oregon’s judicial branch. For years Oregonians have watched as courts across the nation have been caught up in a transformation of the political processes which select our judges and protect our courts. This process was encouraged, though not created, by the U.S. Supreme Court decision in Minnesota v White, 536 U.S. 765, 122 S. Ct. 2528 (2002). Even as we watched the world change, we continued to believe that Oregon was different, that our almost unique combination of routine appointments and rare contested non-partisan elections would survive and continue to serve as well in the future as it has in the past. We told ourselves that Ohio- or Texas-style judicial elections, with million-dollar campaigns and special interest attack ads, would never take hold here. We tried to convince ourselves that intense personal attacks on individual sitting judges over single unpopular decisions would remain rare. We doubted that Oregon voters would ever come close to approving efforts to make judges more accountable to campaign donors and less accountable to the Constitution.

In 2006, it became clear that we were wrong about all these things. We had our first million-dollar campaign. We had challenges to Judges Mary Mertens James and Paul Lipscomb. And we had a proposed constitutional amendment to reorganize the way judges are elected: Ballot Measure 40. We learned Oregon is not immune to the national trend towards a more openly political judicial process. We must expect those who believe judges owe their allegiance to something other than the Constitution will continue to bring pressure to bear on our courts. We lawyers and judges who work within the judicial system can no longer pretend the rule of law, and the fair and impartial operation of our courts, need not be defended. We have allowed ourselves to coast on the good will of the public for too long. It is time for us to stand up for the values at the heart of our professional lives and dedicate ourselves to fighting for what we believe in. We have to remember to see these challenges as opportunities rather than burdens.

Despite attacks on the courts and the rule of law, the public has a strong positive opinion of the judicial system and its role as protector of individual rights and the Constitution. The public supports equal access to justice and understands that keeping courts free of political influence and pressure is a necessary part of keeping the courts fair and impartial. The public knows judges should be held accountable to the law and the Constitution, but not to politicians or public opinion polls. Even so, these beliefs don’t always prevail — and don’t always prevent misunderstanding or deliberate misrepresentation of the role courts play in our democracy.

In the long term, the best defense against misunderstanding and misrepresentation is education. Those who know more about the courts are supportive of a strong judicial system. This holds true regardless of party or ideological affiliation. In our schools, existing programs such as the Classroom Law Project make Oregon a national leader in law-related education, but still reach only a fraction of the students whose understanding and votes will be needed to protect our judicial system. Our time — and money — can help those programs move into every corner of the state. While a lawyer in every classroom may be too much to ask, every school deserves and could have lawyer-supported civics classes. And outside the schools the opportunities for education are limitless. We can turn the positive regard the public has for courts and the rule of law into active support by taking every opportunity to speak out about the value fair and impartial courts bring to the community.

More immediately, we who support the rule of law need to openly and aggressively confront those who inadvertently or deliberately foster misunderstanding of the role of the courts in the preservation of our liberty. This effort cannot be left to the lawyers alone. Judges have to do their part. In years past, both by nature and by rule, most judges chose to remove themselves from the public eye and avoid participation in political debates. Former U.S. Chief Justice William Rehnquist felt one of the most appealing things about service on the Supreme Court was the ability it offered to participate in the way the country was governed and still maintain a private life. In 2004, he told C-SPAN 2 interviewer Brian Lamb that he didn’t need to become a celebrity or even raise his visibility in order to do his job. Now, only a few years later, the rules have changed, and his reticence seems both quaint and unsuited to the current climate. Events in other states have taught us that if judges refuse to speak, then others with less honorable intentions will define the terms of the debate.

When lawyers or judges confront misrepresentations about the judicial system and the role of judges in preserving the rule of law, we need to avoid responding to slogans or debating specific cases. Our message has to stay clear and simple: fair and impartial courts, accountable to the Constitution and free from political influence, are a necessary part of a free society. When critics try to portray the courts as the enemy of mainstream values, we need to emphasize that those values, as set out in the Constitution, are precisely what the courts are dedicated to preserving.

Defending justice is not something the legal community can do alone. We need to form alliances with others who share our values. Nor should we limit ourselves to the usual suspects, such as the League of Woman Voters. Supporters of the rule of law come in every flavor, and access to justice is an issue that can bring a remarkably diverse community together.

It is tempting to see our problem as one created by politicians demonizing the courts to their personal advantage, and of course there are such politicians. But there is more to it than that. We have to acknowledge that those politicians have found a receptive audience, and we must keep in mind there are other politicians who have been brave enough to support the rule of law even in the face of special interest pressure.1 Oregon is lucky to have political figures on both sides of the aisle that support our judicial system. Those individuals deserve our thanks and our support.

If we are able to meet the challenges presented by the intrusion of special interest money and partisan attacks into the judicial process, we will have a stronger legal system with deeper community support. One of the brighter moments of 2006 was when our new Chief Justice, Paul De Muniz, made this struggle a priority. We all need to "go public" and apply the skills our profession has given us in the service of justice itself.

1. According to Henry Kissinger, "Ninety percent of politicians give the other 10 percent a bad name."

The author is a Multnomah County Circuit Court judge.

© 2006 Edward J. Jones

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