Oregon’s method for hiring and retaining state court judges has left its judicial branch highly susceptible to the influence of outside special interests.
If the trend in other states that also hold judicial elections is any indication of where Oregon might be headed, it won’t be long before dark money begins to flow into Oregon Supreme Court campaigns and voters are bombarded with ads attacking judges whose ideologies don’t align with corporate interests.
In a state such as Oregon, where voters are provided with wholly inadequate information before being asked to elect or reinstate a judge, it would be easy for political action committees to come in, fill the information void and shape voters’ opinions.
To see how quickly judicial elections can be tainted, look north, where a handful of billionaires are skimming from their deep pockets in an attempt to unseat a Washington Supreme Court justice they view as problematic.
By forming a PAC and dumping close to $1 million into it in a matter of weeks, Bill Gates, Paul Allen and a handful of other affluent individuals are working to defeat a judge who issued a decision they didn’t like against funding charter schools with money dedicated to public schools.
Similar attempts by special interests to shape supreme courts in other states have proved successful. In Texas, doctors and insurance companies seeking to cap the amount of damages awarded in tort claims have reshaped that state’s Supreme Court in recent decades, and earlier this year in West Virginia, coal interests helped elect a business-friendly justice by pouring $2.5 million into the state Supreme Court election.
“All around the country, special-interest groups are outspending the candidates themselves,” said Malia Reddick, a national leader in judicial reform efforts. “To an increasing degree, a lot of the money is so-called dark money – money that we don’t know where it comes from.”
Special-interest spending on advertisements in judicial elections has hit an all-time high, with outside groups investing $14 million on TV ads in current state supreme court elections, the Brennan Center for Justice reported on Oct. 26.
The center said its report underscores “the expanding influence of secret money in targeting judges unfavorable to corporate agendas and other special interests,” adding that these millions of dollars spent “pose a troubling threat to core values of fairness and judicial integrity.”
At the time that report was released, Election Day was still two weeks out, and total spending on judicial races nationwide had already reached nearly $30 million, the report revealed.
“A lot of this money is going toward attack ads – really ugly ads that focus on a single decision, where a judge upheld the law, but it may have resulted in a criminal being set free or needing to be retried,” Reddick said. She said in election environments where voters have very little information to go on, this misuse of information can be a real problem.
Reddick manages the Quality Judges Initiative at the Institute for the Advancement of the American Legal System, or IAALS, housed at the University of Denver. Before that, she was the director of research and programs at the American Judiciary Society.
She said it was during the Jacksonian era, the mid-1800s, when the U.S. saw a shift away from appointed judges and toward judicial elections. Then in the early 1900s, there was a shift toward nonpartisan elections, which Oregon still practices today. But it wasn’t until the 21st century that judicial elections saw an “explosion of campaign money,” she said.
“We have seen, since 2000, this money has increasingly been coming from special-interest groups, and it’s more and more dark money, and it’s more and more being spent on these nasty attack ads.”
Spending in Oregon’s 2016 judicial campaigns is paltry in comparison to states such as Ohio, Michigan, Louisiana, Mississippi, Kansas and North Carolina, where hundreds of thousands of dollars have been spent on TV ads.
Ted Sims, the incumbent in a Washington County Circuit Court race, has raised more money than any other judicial candidate in Oregon this year, with $38,414 in campaign contributions. This includes a $7,000 loan and $15,130 from his own bank account. Several attorneys and law firms also contributed to his campaign.
Many judicial campaigns in Oregon have spent nothing or next to nothing, although 11 candidates for circuit court judicial positions raised $5,000 to $15,000 each.
In 2012, however, the race between Richard Baldwin and Nena Cook for a position on the Oregon Supreme Court saw cash contributions exceed a half-million dollars, and some of that money came from PACs, although not at the level seen in other states.
Judicial reform advocates think Oregon should change the way it appoints judges before its courts are compromised.
An in-depth evaluation of Oregon’s judicial system in 2007 concluded there was an urgent need “to protect the judiciary from efforts that would politicize the courts for the benefit of a few, to the detriment of the many.”
The report, authored by the League of Women Voters of Oregon, noted that 39 states regulated the financing of judicial campaigns in some way; however, in Oregon there are no limits on campaign contributions, including in the judiciary.
But susceptibility to special interests is not the only trouble with the way Oregon elects its Supreme Court, Court of Appeals and Circuit Court judges. Oregonians often face judicial selections on the ballot without any of the tools necessary to make an informed vote.
Eleven other states provide voters – or the body responsible for appointing judges – with detailed, independent evaluations of how a judge is performing his or her duties.
In Colorado, that information is available online and is included in the widely distributed voters guide called the Blue Book, along with recommendations on whether the judges should keep or lose their seats at the bench.
On the Colorado Office of Judicial Performance Evaluation website, voters can find detailed reports on each judge that include data on whether they treat parties equally regardless of race, sex or economic status; if they issue opinions in a timely manner; and a host of other pertinent criteria.
In the May primary and the November general election, Oregon voters have been asked to fill 65 judicial positions across the state, including nine in Multnomah County Circuit Court and three on the Oregon Supreme Court.
In all but five judicial races statewide, there is only one name on the ballot, and most voters know little, if anything, about the candidates and incumbents attached to those names.
If past elections predict the future, many voters will pass over them without making a mark.
Two years ago, of the more than 304,000 Multnomah County voters who returned their ballots, 47 percent did not vote in their county’s lone judicial race. Judge Gregory Silver retained his position after running unopposed.
Those who do vote in judicial elections must do so relying on sparse information that’s biased by nature. The Oregon Voters’ Pamphlet contains a brief bio that’s submitted by the candidate, and the Oregon Bar Association posts questionnaires on its website that were filled out by fewer than half the candidates this election cycle.
“An entry in a voters’ pamphlet might reveal an impressive resume,” said Michael O’Brien, Presiding Judge in Tigard Municipal Court, “but little additional information. A candidate can’t, ethically speaking, reveal how she or he might be harsh on drug offenses or armed robberies or whatever.”
No independent analysis of how Oregon’s judges are performing at their jobs is made available to voters, and there is little, if any, public debate.
“The Oregon State Bar’s judicial preference polls attempt to fill the gap by polling attorneys who, presumably, know the candidates and have a broader range of information about them than voters do,” O’Brien said.
These polls, however, are not publicized and lack detail.
Multnomah County Circuit Court Judge Edward Jones remembers when The Oregonian used to survey the courts and publish judicial ratings, although he said the newspaper ended the practice more than a decade ago.
He thinks giving voters more information would be helpful but said figuring out how to rate a judge isn’t easy. You can easily determine if they show up to work on time and sober, but measuring their love of the law and concern for the people that come before them would be difficult to determine, he said.
But elections are typically reserved for judges who have already secured a seat at the bench, because despite Oregon’s judicial election system, the vast majority of Oregon’s judges were not elected to their positions in the first place.
When a judge retires mid-term – and in Oregon, most do – it’s the governor, not voters, who appoints their replacement.
“A big-picture drawback of that kind of system – and Oregon is not alone – is that in some states, it’s a culture of judges to resign mid-term,” Reddick said. “I think it tends to go against one of the values that many people see in contested elections for judges, and that is accountability. But elections aren’t providing accountability if voters don’t have a choice.”
Jones said most judges retire mid-term because it’s a personal decision to retire, and lining that up with a six-year term isn’t practical.
In recent years, about 85 percent of Oregon’s state judges have been initially appointed rather than elected to their positions, according to the National Center for State Courts.
Gubernatorial appointments are preferable to judicial reform advocates – but only when they occur in partnership with a nominating commission, a process also known as merit selection.
“Merit selection is certainly one of our ideals,” said Norman Turrill, president of the League of Women Voters of Oregon. “The recognition is that judges are rarely opposed on the ballot, and we think an appointed process would be better than the way we do it now,” he said.
In this process, multiple office holders appoint attorneys and non-attorneys representative of the judicial district’s community. That commission nominates two or three people that the governor must choose from for judicial appointment.
Missouri was the first state to implement this system about 75 years ago.
In Oregon, however, the governor is free to make appointments based on his or her own potentially partisan and personal preference, which opens the door to nepotism and cronyism.
O’Brien suggested the governor could use the bar’s preference poll to make appointments, “though there’s nothing binding about that process.”
Once judges are seated, voters are unlikely to remove or replace them.
Gov. Kate Brown, to date, has based all her judicial appointments on the recommendations of her judicial selection panel, although the law does not require her to do so.
This panel is assembled by the governor’s office and is composed of people from a range of different legal practice areas, said Bryan Hockaday, a spokesperson for Brown.
IAALS sent Brown a letter, penned by former U.S. Supreme Court Justice Sandra Day O’Connor, shortly after she was sworn in, asking her to consider using the nominating commission process, as there was an Oregon Supreme Court vacancy at that time.
Brown’s office did not reply to the letter, Reddick said.
O’Connor has made changing the way America selects its state judges her legacy project since retiring from the U.S. Supreme Court, and she has been working with the Quality Judges Initiative at IAALS to promote her judicial selection plan.
In six states, including Colorado, Alaska and Utah, all four components of the O’Connor Plan are used in the selection and retention of trial through appellate court judges, Reddick said.
First, a nominating commission selects candidates for the governor’s appointment.
Once a judge is appointed, regular evaluations of their performance are conducted.
Reddick explained this is typically done by conducting surveys of attorneys, litigants, judges and others familiar with the judge’s work, such as probation officers, social workers and court staff.
The judge’s impartiality, clarity of communications, command of the law and procedural rules, docket management and even temperament are all examined.
A judicial performance evaluation commission analyzes the results and then makes its findings public, along with a recommendation on whether the judge should be retained.
Having this information at their fingertips helps voters make informed choices when judges are periodically up for retention election.
In these elections, the sitting judge runs uncontested, and voters are asked if they would like to keep the judge on the bench or if they would like the judge to be removed. If they vote against retaining a judge, then a replacement is appointed.
O’Connor recommends the components of her plan be written into each state’s constitution, which in Oregon would have to be introduced in the Legislature and approved by a majority in both the House and the Senate.
Jones said that before he was appointed to his position on the Multnomah County Circuit Court, he was screened by the Multnomah County Bar Association and went through four rounds of interviews.
He said he hasn’t seen another process for appointing judges that would work better than the system Oregon already has in place, and he isn’t a fan of retention elections.
He said Oregon’s judicial fitness commission is in place to make recommendations to the Supreme Court when a problem judge needs to be removed.
“Nobody other than the governor can make you a judge, but lots of people have the power to prevent you from being a judge,” he said of the selection process.
“The real problem with retention hearings is: Who are you running against?” he said.
He acknowledged that elections are susceptible to campaign finance influences but said he didn’t think a different judicial selection process would prevent that.
Carolyn Tyler, IAALS spokesperson, said that in the six states that have implemented the O’Connor Plan, including judicial performance programs, “we’ve not seen high-dollar anti-retention campaigns.”
“However,” she said, “there are 13 additional states that also have retention elections — either in conjunction with a merit selection process or contested elections. Some of these states have seen isolated instances of high-dollar anti-retention campaigns based on particular decisions or overall perceived ideologies. … But generally speaking, retention elections are less politicized than contested elections.”
The Center for Public Integrity and Public Radio International gave Oregon a D grade for judicial accountability in 2012, but making changes to the state’s judicial processes is not an issue any organization has championed in recent years.
“There have been occasional discussions about looking at our selection process, but it’s been a long time since those discussions have picked up steam in Oregon,” Oregon State Bar spokesperson Kateri Walsh said in an email. “If a serious proposal were to take shape, I’m certain the OSB would be involved in those discussions and would be evaluating the proposal on its merits.”
She said the bar considers the existence of a fair and impartial judiciary independent of the political pressures of the other two branches to be foundational to a strong justice system. But, she said, Oregon has been fortunate in that its courts have been “widely regarded as healthy and functional.”
O’Brien agreed. “My overall experience suggests Oregon’s judges function in a nonpartisan way,” he said. “I haven’t seen much evidence of appointment based on cronyism or special interest, though I’m sure it exists to some degree.”