Campaign money and influence: It's time for Oregon to reform judicial selections
This article appeared in The Oregonian on Novemeber 4, 2011.
Imagine that you are injured by a large corporation. You sue to recover the costs of your medical care and other damages. You win at trial, the case goes up on appeal, and you find yourself before the Oregon Supreme Court. There, you learn that the same corporation that injured you spent millions of dollars last year to elect the judge who may cast the deciding vote. How would you feel?
This example is not some farfetched nightmare. It is based on an actual case from West Virginia in 2007, where that state's Supreme Court threw out a damages award against a coal company. The court's vote was split 3-2, with the deciding vote cast by a new justice whom the coal company had just spent $3 million to elect.
Oregonians have not had to face this scenario, thankfully. But it may be just a matter of time. Like many other states, Oregon elects its state judges. Unlike many other states, Oregon has no rules limiting the dollar amounts that can be contributed in state elections. Thus, unless we make changes to our system of selecting judges, we are at risk of joining other states that are seeing a flood of special interest money into judicial elections.
West Virginia is only the starkest example. Another is Iowa, where three Supreme Court justices were defeated last year when a special interest group spent nearly $1 million against them for reaching the "wrong" conclusion on same-sex marriage. A new report by the Brennan Center for Justice describes how big business and other special interests have embarked on a "hostile takeover" of state judicial elections. The report describes a "coalescing national campaign that seeks to intimidate America's state judges into becoming accountable to money and ideologies instead of the constitution and the law."
It is tempting to think that Oregon is somehow immune to this trend. We have a reputation for clean politics, certainly relative to other states, and Oregon has not seen the type of hotly contested, ideologically based judicial campaigns that Iowa and other states now see with regularity. In fact, competitive judicial elections in Oregon are uncommon, as judges often retire in midterm, leaving the governor to fill the vacancy.
Next year will be different, however. With the recent retirement announcements by Chief Justice Paul DeMuniz and Justice Robert Durham, we are likely to see high-profile campaigns to replace both of them and Court of Appeals Chief Judge David Brewer (who has announced that he will run for DeMuniz's position).
We should hope that both races avoid an influx of special interest money. But even if we are so lucky, it is time to ask whether our system of electing judges is really a healthy one. Judges are very different from other elected officials. Politicians run for office on a policy platform and are supposed to be accountable to public opinion. But that is not what we want from judges. We want judges to put their own policy preferences aside. We define a good judge as someone who will apply the law to the facts and reach a principled conclusion, even if unpopular. Forcing judges to worry about fundraising and to defend their decisions in political campaigns will tempt them to choose what is easy to defend, rather than what they think is right.
An alternative to judicial elections would be a merit-based appointment system with input from broadly representative screening panels. While the details need careful study, Oregon should wait no longer to move in this direction. We have been blessed with quality judges and clean judicial elections, but we are tempting fate. As long as we hold judicial elections with unrestricted money (and our state constitution makes it very difficult to restrict that money), we risk the same type of spectacle that has infected other states and undermined confidence in the legal system.
Posted on November 4, 2011.
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