Oregon State Bar Bulletin — AUGUST/SEPTEMBER 2009

The True Tragedy
An opinion piece in the May 2009 Bulletin discusses the impact of criminal sentencing on minorities (“A New Reconstruction”). This piece neglects to consider the true tragedy of race and poverty in our public safety system: Racial minorities and the poor experience substantially higher rates of crime victimization.

According to the Bureau of Justice Statistics, more than half of murder victims are racial minorities. Racial and ethnic minorities are also far more likely to be victims of property crime, including devastating crimes such as burglary and motor vehicle theft.

Kevin L. Mannix
Salem President, Oregon Anti Crime Alliance

More Ammunition
My compliments to Jim Westwood and Charlie Hinkle on their debate in the May 2009 issue of the Bulletin on the advisability of a new constitution for Oregon (with correction in the June 2009 issue at page 5) (“An Oregon Constitutional Convention?”). Each of them presented his point of view persuasively; and no doubt their exchange will serve to re-open a subject that has been bothersome for a long time. Without taking sides with either of them at this time, I would like to add a couple of historical footnotes with items that were not mentioned by either of them.

1. When a revised Oregon Constitution was proposed in the 1960s, the Oregon State Bar was naturally interested; but as I recall, the proposed new constitution was not presented in time to be considered by the OSB membership at an annual meeting (which was then the method of acting). So instead a committee, of which I was a member, prepared and published a report displaying in parallel columns the existing constitution and the new proposal. The idea was to give the voters a chance to compare the old language with the new, and in some instances to see the effect of changing some provisions into statutes. Whether it had any effect is, of course, unknown. But in any event, the proposal was defeated.

2. One of the sources of discontent is the relative ease of amending the constitution by the initiative process, by which a well-financed proponent can put a pet project beyond the reach of the legislature. In particular, an initiative having monetary effect need not (and often does not) pay any attention to the state’s financial situation or to the legislature’s obligation to produce a balanced budget. In 1995, the City Club of Portland launched a committee, of which I was a member, to make a thorough study of the initiative process. The committee’s report, which was adopted by the club in 1996, recommended, among other things, inclusion of the legislature in the initiative process, so that the financial effects could at least be harmonized with the rest of the state’s finances. That report was followed by another committee study that was adopted by the club on Jan. 11, 2008, and which substantially endorsed the club’s previous recommendations.

The foregoing comments are not intended to be critical of the articles by Westwood and Hinkle, which are excellent. But if further discussion ensues, this may provide additional ammunition.

Randall B. Kester

A Masquerade
The opposition to Judge Sotomayor seemed all partisanship, but disguised as selfless principle.

Not since the king of England imprisoned Edward Coke, former chief justice of the Court of King’s Bench, has the tincture of politics so colored the water of Justice.

The partisan opposition offers two reasons to oppose Judge Sotomayor.

First, she said in a law school speech that a woman and a Latino woman at that could do a better job than white males. This remark shows she is proud of herself and her abilities. She recognizes that one’s life experiences have some effect on one’s understanding. Don’t you expect those qualities exist for every member of the U.S. Supreme Court since John Marshall and Oliver Wendell Holmes?

After all, the traditional representation of Justice is as a woman.

But the naysayers pointed out that Justice is blindfolded. Not so they said of Judge Sotomayor. She would rule with her eyes wide open.

Second, they contended she doesn’t “follow the law” because she and judges on the 2nd Circuit Court of Appeals were biased when they ruled in favor of black firemen to uphold a Connecticut city’s decision to scrap a city-sponsored examination as a basis for promotion in its fire department. The 2nd Circuit upheld the city but, by a 5-4 vote the Supreme Court reversed. Since Justice Souter, whom she will replace, was one of the four dissenters, Judge Sotomayor’s vote will merely maintain the status quo on the court.

In fact, by the 1990s, the U.S. Supreme Court had invalidated over 1,200 state and local acts and over 130 federal acts, it is reported. And since the 1930s, the court has three times changed the law to require a state to provide a lawyer to criminal defendants too poor to hire one. It would appear that the law at the highest level is not always static.

The argument that the president’s nominee wouldn’t follow the law was presented, as a final irony, by those senators who would erase or overrule Roe v. Wade about a woman’s reproductive rights.

Edward N. Fadeley
Creswell Retired justice of Oregon Supreme Court

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