The Other War on Judges

Marc Abrams

While most anyone nationally who thinks at all about judges is thinking tonight about the withdrawal of the Harriet Miers nomination for the Supreme Court – a nomination that gave a brief rebirth to former Senator Roman Hruska’s comment about Nixon nominee Harold Carswell that "even mediocrity deserves representation" – Oregonian should be deeply troubled by the move afoot to recall Judge Mary Mertens James from the Marion County Circuit Court.

James, who has been on the bench all of a year, had the temerity to strike down Measure 37, the "Screw my neighbors I want to build a refinery" measure. I read the James opinion. I didn’t agree with all her logic, particularly a rather curious rationale for why 1000 Friends of Oregon should have standing to be in the lawsuit (unnecessary, given the other plaintiffs) and an interpretation of Article I, Section 22 of the Oregon Constitution that, taken to its logical conclusion, might end the initiative process pretty much altogether. But, by and large, I thought the opinion well researched and well reasoned.

That, however, shouldn’t matter. Well, of course whether I like the opinion shouldn’t matter, but, more broadly, it should not matter whether anyone likes the opinion. That’s not the role of a judge. The role of the judge is to figure out what is correct under the law and apply it. It may actually turn out to be wrong – that’s okay. A judge is a human, not a computer. And when a judge is wrong, we have a mechanism to deal with it. No, not a recall. An appeals court.

Don McIntyre, Rep. Jeff Kropf and others in their merry band, however, don’t see it that way. When they don’t like a decision, they call it "judicial activism" and call the judge "a politician in robes." In James’ case, they try and slam her with the idea that she worked for the state Department of Justice for ten years. Well, yeah, over a decade ago, after which time she was in the private sector for 11 years. They want to recall James simply because they don’t agree with her opinion.

Now I seriously doubt either Kropf – who has a radio show on the same station I do – or McIntyre has read the briefs submitted by the parties. I know they didn’t hear the arguments. So they really have no idea what James had in front of her on which to base her ruling . . . and they don’t care. This is about turning judges into the next victims of the culture wars.

The judiciary isn’t supposed to be popular. How many votes do you think they get from the people who they send to jail or their families? The judiciary is supposed to apply rules in a way that is insulated from the pressures of public opinion, even though they do face Oregon’s voters every six years.

I don’t expect much from McIntyre, but Kropf, who took an oath to uphold the state Constitution, should be held to a higher level of understanding of the judiciary. Kropf, who lives in Marion County, might want to spend a day or two with a judge, and get a sense of what their job is like. Or run himself. Let’s see if they prefer him to Judge James.

In the meantime, this is a stunningly important political issue, and every thinking voter in Marion County should support Judge James. Not because they agree with her ruling. Not because she got it right legally. But because an attack like the one on James is more than an attack on her – it’s an attack on the entire judicial system and the role it plays in being the arm of government deliberately, thoughtfully, and correctly insulated from the pressures of day-to-day politics.

  • Ted Blaszak (unverified)

    This issue may be moot, I am doubtful of their ability to gather the 14,400 valid signatures in the next 90 days. I could be wrong but Marion county is difficult turf to get the required amount without a great effort and significant funding.

  • Dare!PDX (unverified)

    I sure am glad Marc Abrams is not a judge. Sometimes justice is served at the polls.

  • Richard Bolcavitch (unverified)

    Measure 37 has flaws and I’m surprised that it was ever granted a ballot slot.

    ‘Property’ is not defined under “(11) Definitions” and it does not require the property owner petitioner to undergo a title search to see if the property in question was justly acquired.

    Since most of the Pacific Northwest was unjustly acquired by the Federal government from the indigenous population a title search would find that the property was unjustly acquired.

    Robert Miller of Lewis and Clark Law School has written a short article about how this unjust acquisition was accomplished.

  • Karl (unverified)

    I have a problem with Marcs' attitude. If 37 is the " Screw my neighbors I want to build a refinery " measure, then what it was trying to fix was the "Screw my neighbors I don't want them or their kids to live on their land. I'm going to take that value of their land and not pay for it." measure. Why don't we stop the vitriol on both sides and figure out a way to stop "screwing our neighbors"?

  • Stupid Republicans (unverified)

    Someone should ask Kropf and McIntyre whether they want judges making decisions about the law based on a fear that they may be recalled in an election.

    Do they believe electoral pressures make judges adhere more strictly to the letter of the law? Or, would they rather have judges deciding cases based on the activist criteria of what ruling would be consistent with public opinion?


  • (Show?)

    OK, so if I understand your argument, Marc, there is never a legitimate reason to recall a judge because of a decision he or she makes.

    So, a judge could decide, for instance, that sodomy laws are AOK and that it is not an unreasonable search and seizure to bust into private homes if they have the probable cause of hearing moans and groans of pleasure inside the houses of known homosexuals -- a judge making that decision should also have no accountability other than getting reversed and possibley losing at the next election? You would oppose a recall of that judge too?

    Am I getting you right here?

  • What's next (unverified)

    """"""Do they believe electoral pressures make judges adhere more strictly to the letter of the law? """""""""

    Judge James will be overruled meaning her judgment had ventured far from the "letter of the law".

    Making her recall more than justified.

    The presumption by M37 opponents that James made the correct ruling is laughable.

    Will these same people agree later that the Oregon Supreme Court made the right call in overruling James?

    Or will the left cling to the James ruling because they like it.

  • (Show?)

    Hmm...what a fine day for trolls.

    I think Rob's question is appropriate, because there ARE times you need to recall judges. I'm not a lawyer, so I'm in a poor position to judge the judge's ruling. But what I can judge is this: the people leading the recalling are seeking political gain out of it. When a member of one branch of the government begin to try to politically muscle aside foes in another branch, regular citizens like me can use our nose to tell whether it's appropriate.

    The charge of "judicial activism" seems mainly to be made by those in the legislative branch who begrudge those in the judicial branch their constitutional duty.

    This stinks.

  • Stupid Republicans (unverified)

    Kremer and What's Next...

    When a judge's ruling is overturned, that is a rebuke. No judge likes to be told publicly that they are wrong.

    If a particular judge is overturned often enough, then a more qualified jurist should run against him/her in the next election.

    But in this case, McIntyre and Kropf are trying to recall this judge because they don't like the policy outcome of her decision. This judge's opinion hasn't been reviewed by a higher court yet. So... again... my question is: Do they think electoral pressures will encourage strict adherence to the law? Or will electoral pressures just encourage judges to make more popular activist rulings?

  • What's next (unverified)

    Why do ask the same question? ""Do they think electoral pressures will encourage strict adherence to the law?"

    The answer is yes. That's why the recall. The judge did not adhere and it was egregious.

  • Stupid Republicans (unverified)

    What's Next:

    Do you really believe that electoral pressures will make judges MORE faithful to the principle of the law?

    Hmmm... to learn more about what electoral pressures do to elected officials' regard for the law, check out the lead story on tonight's six o'clock news, or go here.

    Sarcasm aside, enhanced electoral pressures make judges more accountable to public opinion polls, not more accountable to the law.

  • (Show?)

    It is kind of interesting to me that nobody dealth wtih the question I asked.

    Am I to believe that if a judge were to make the decision I describe that there would not be a clamor for his/her recall from the left?Marc, would you oppose a recall of that judge?

  • PanchoPdx (unverified)

    Great question Rob.

    No doubt, if the Birkenstock was on the other foot, they'd consider it their moral obligation to recall the judge.

  • Stupid Republicans (unverified)

    Rob, Nice try but I don't remember any liberals circulating a recall petition after the Oregon Supreme Court upheld Measure 36. And when Marion County Judge Paul Lipscomb overturned Bill Bradbury's decision to exclude Ralph Nader from the Oregon ballot, there were similarly no recall petitions circulated. (And that WAS a case when Lipscomb was rebuked with a contrary ruling by the Oregon Supreme Court.) Oregon judges make decisions all the time that are contrary to the policy goals of the organized left. Sorry, play again next time.

  • (Show?)

    Actually, I commented on it upthread, Rob.

  • PanchoPdx (unverified)


    Suppose Kevin Mannix is the Governor and he just appointed a judge who judge proceeded to overturn Oregon's minimum wage law or little-DavisBacon using an new interepretation of substantive due process -- completely without precendent from higher courts -- holding that the legislature did not have the authority to interfere with the right of individuals to contract?

    Knowing that it might take several years for the case to wind its way through the appellate courts, would you just sit on your hands while the minimum wage falls from $7.50 to the federal minimum of $5.15?

    J. James' decision was a comparable overreach.

  • (Show?)


    Funny, again you avoided my question.

    Just pointing to a couple decisions the left didn't like from the past, neither of which were anything close in reach to the M37 decision or the hypothetical decision I posed, is hardly a compelling way to dismiss what I asked.(In fact, the same-sex marriage example is a particularly lame example to use as a rebuttal. Many liberals totally agreed with the decision's basis in law, contrary as the outcome may have been to their personal views on the underlying issue.)

    With "arguments" such as yours, it is little wonder you prefer not to use your real name on this thread. Would be embarrassing.

  • (Show?)

    Okay, Pancho and Rob, I just got back on line and saw this string. "Stupid Republicans" DID answer you, as did Jeff, and did so precisely. Here's the answer: NO, I have not and would not participate in a recall mid-term on the basis of a ruling. I would not have even supported one for the Judge in Alabama on the 10 Commandments decision -- and, speaking of Judges playing poliytics, Judge Moore is now, curiously, leaving the bench based on his fame from that case and running for Governor. Both of you do what conservative talkers always do -- put words in our mouthes and assume that's what we'd say. Well, we didn't say it and don't say it. There are reasonable bases to have a recall, such as clear impairment, the kinds of things that would cause one tho have a President step aside on 25th Amendment grounds. But NEVER on the basis of a decision. That's what the election in th enormal course is for, if you believe judges should be elected at all.

  • (Show?)

    Rob, let's put the Birkenstock back on your foot and ask you a question:

    Can you name one time in Oregon, in the last 30 years, when the organized left (or even the disorganized left) has either successfully or unsuccessfully recalled a judge based purely on a judicial ruling?

    (Some nutjob blogging about a recall doesn't count. I'm talking filing papers and/or collecting signatures.)

  • (Show?)

    Marc: What words did I (or Pancho) put in anybody's mouth? I simply posed a hypothetical a decision and asked it you would oppose recall if that decision was made by a judge.

    I was asking if there is NEVER a grounds in your mind for recall based on a decision. And from your answer, I can see the answer is yes. I'm glad you are consistent.

    Kari: I'm not sure what the point of your question is. No, I can't think of a judge being recalled by the left. But what does that have to do with me probing to see if Marc's position is an absolutist position or not, which was the point of my query?

  • LT (unverified)

    All this talk about "the left" and "the right" implies there are 2 teams and every Oregonian must join and give unquestioning support to one or the other team or be a spectator.

    Is that really the view some posting here want to convey?

    That does not leave room for someone to say, for instance, "I once heard Justice Gillette speak and was really impressed, but what was he thinking in the ---- decision where he said....?".

    A cynic might respond "But that would require thought, which perhaps not everyone wants".

  • Al Edmonds (unverified)

    I don't understand why judges shouldn't be accountable for their actions. Checks and balances implies accountability. If judges deem it in their prerogative to make policy, second guess others decisions, then the judges should be held up to possible removal. Absolute power corrupts; those who feel no pressure can act maliciously or foolishly without fear of consequences. Besides the judge (James)who ruled against a common sense protection of private property, (who definitely should be recalled) why is there no movement to recall Judge Lipscomb who is effectively destroying the future of Public Employee Retirees by his arbitrary, malicious, and certainly unwise decision? (which of course the clueless Oregon Supreme Court refused to examine...Remember the song from Dukes of Hazzards, Just a bunch of good ol' boys) By the way, the comment about our judicial system needing to be "thoughtfully insulated from political pressure"....sounds like a vote for President Bush's policy of isolation from the pressure of reason and accountability. Sounds like a "cop-out" to me. No one is above the law supposedly, even those who make the law (Judges). Remember the historical arrogance of the judicial legal establishment. Who said the law is what I say it is? I think our "system" of justice fell apart after that. The view is that the legal system (no matter how corrupt) is more important than the substance or outcome it produces: justice or lack of it. That is folly!

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