Oregon Supreme Court Forum

Cody Hoesly

Yesterday the Oregon Chapter of the American Constitution Society held a forum for the three candidates for the Oregon Supreme Court seat being vacated by former Chief Justice Wallace Carson.  They are Judge Virginia Linder of the Oregon Court of Appeals, former Labor Commissioner Jack Roberts, and Pendleton trial lawyer Gene Hallman.  BlueOregon previously covered the race here, here, here, and here.

I attended the forum (OPB and the Bend Bulletin picked up the story) and here are my thoughts:

Agreement:  The candidates seemed to agree on most everything, though that can't possibly be true.  The key, I think, to this angle is that each has decided to waive their constitutional right to say whatever they want about whatever they want.  Instead, they have chosen to ethically refrain from discussing matters that might come before them, in line with model rules on judicial campaigns.  Accordingly, they aren't openly distinguishing themselves on issues, though Hallman has clear liberal backing, Linder has clear establishment backing, and Roberts has clear conservative backing.

Diversity: The candidates each tried to distinguish themselves from their competitors by focusing on how they can bring diversity to the court.  Linder focused on the fact that she's a woman and the court currently has no women and seven men.  Hallman focused on the fact that neither the court nor his competitors comes from outside the Willamette Valley.  Roberts focused on the fact that, once Carson steps down, the court will have no former politicians, and few people with a business background, things his competitors also lack.

Anyway, the race will be interesting because it is the first time in a long time that there is no incumbent for an Oregon Supreme Court seat:  the race is a free-for-all.  Also, it will provide some insight into the influence special interests will have on future Oregon judicial elections.  Those groups have made an impact in Ohio and Illinois already - and Oregon is poised to face more ballot measures on the subject.  What kind of Oregon will we become?

Comments

  • askquestions1st (unverified)
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    I have always found how many judicial candidates hide behind the ethical rule against discussing matters that might come before them, whether campaigning or being confirmed, to be intellectually dishonest and morally reprehensible. The fact is a judicial candidate are being interviewed for one of the most important jobs in our government and asking him or her how they would reason about such matters that might come before them as opposed to how they would decide the specific matter is wholly appropriate. Even if a questioner does not ask such a question in the right way, a candidate of acceptable character and competence would address the implied properly phrased question.

    From your description it sounds quite likely that neither the candidates nor the panel served the public well in this particular instance. Not that it matters too much, electing judges is such a fundamentally dumb idea that one should not expect a good outcome. Before commenting further, however, is a full transcript of this session available to the public for review?

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    I doubt anyone will go to the trouble of transcribing the 1 1/2 hour session, but ACS videotaped it and said they would send a copy to the campaigns. Maybe we can raise money by selling them as sleep aids. (Just kidding--I would be glad to make copies available if people were really interested, as long as everyone agreed this would not constitute giving away something of value . . . and having sat through the session myself, I am convinced that it does not.)

    To be fair, I really didn't feel that the three of us ducked any of the questions. I do think the panelists--three respected attorneys--were careful not to ask question they thought were inappropriate.

    I'm curious what kind of questions folks would like to ask if there were no ethical restraints. For example, would people really ask, "Do you think development rights under Measure 37 can be transferred?" I can't believe anyone wants a judge who has already made his or her mind up about something like that without reading any briefs or hearing any arguments.

    Questions about judicial philosophy can be asked, however, and I for one would be curious what kinds of questions people think would help decide who to vote for in a race like this.

  • LT (unverified)
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    OK, Jack, here are some good questions:

    1) Do you understand why many people admire Justice Carson? What about his time on the Supreme Court would you emulate if elected--soft voice, ability to converse with ordinary folks, some of his reasoning in decisions, or something else? Is there something he did you strongly agree/ disagree with?

    I seem to recall a time when Justice Linde was challenged by a local judge and there was strong feeling pro/con about the activities of the local judge. As I recall, Justice Linde did a presentation where he spoke about the legal process and answered questions. Also (this shows my age) I recall when J. Tanzer first ran --against someone controversial if memory serves--and he gave a speech at Willamette Law School which was well attended.

    2) Should justices speak to the public more often -- as US Supreme Court Justices sometimes do?

    3) Would it be out of bounds for any judicial candidate to explain the judicial review process for legislation and ballot measures--from local court on up? The whole "Recall Judge James" flap (as if a judge did not have the right to issue a ruling which could then be overturned by the Supreme Court) may show a need for more public education. I was really startled when someone said of Judge James "well, she overturned the will of the people". Perhaps it is because I have a degree in social science and an ancestor who was a judge, but I always thought the judicial branch was part of the system of checks and balances.

  • Ron Ledbury (unverified)
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    Mr. Roberts,

    Does the presumption of lawfulness of government action, as it effects a single individual in their economic pursuits, render the judiciary irrelevant in the protection of individual rights?

    I would assert that an assertive judiciary in the realm of economic regulation, in matters like prohibition of monopoly, would not be judicial activism but would just add one more layer of protection of the individual.

    The notion of judicial activism, at the US Supreme Court level, as well as that for state courts, has been trumpeted so loudly as to render the court useless to aid the individual against the overwhelming power of interest groups in every single other realm.

    Economic corruption, in fact, has routinely been labeled as lawful by statute. In public-private partnerships I would like the combined enterprise to be denied the presumption of lawfulness that is usually afforded to government action.

    In this context, when PERS together with the OIC act in like manner to that of a private investment banker, and use the government to obtain a captive set of depositors, it should be looked upon as if JP Morgan got a law passed that required a subset of citizens to make deposits at their bank and their bank only. Each of these two alternatives impose a like burden upon the individual, and the government's characterization of an ad hoc justification is irrelevant to defining that individual interest. (I raise this fact specific issue only because it best illustrates the destructiveness of the political branches resulting from the abandonment of an assertive judiciary to preserve things like the equal privileges and immunities in the economic realm. My initial love is in economics, and later the interplay between economics and the law. It is really an economics question rather than legal.)

    The court is the last resort for representing individual interests, as the interest groups have already dismissed them, inherently, via the political branches in our republican form of government.

    Thoughts?

    -- OregonLiberty.us -- Ron Ledbury

  • askquestions1st (unverified)
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    I'll pick up on LT's question 3) and just ask directly:

    1) Do you think that turning state judges into politicians by making them stand for election is a dumb or a smart idea?

    2) Do you think that merit appointment of Federal judges, rather than making them stand for election, is a dumb or a smart idea?

  • LT (unverified)
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    As I have read recently, some states have a process where a merit panel (maybe retired judges ?) selects nominees for courts.

    If that works in other states it should be studied.

    The reason many jurisdictions elect judges goes back to before most of us were alive--several decades. It was around 70 years ago that one of my ancestors (a lawyer and former prosecutor) was serving as a State AG in a midwestern state. He'd been elected to that post after getting the nomination in a state convention which the Gov. nominee and others had been angry they couldn't control. Gov. nominee didn't want my ancestor on the party ticket, but the state convention nominated him, what could be done. (This was before primaries). What that Gov. did was wait maybe a year and a half after the election. A State Supreme Court justice died and guess who the Gov. appointed to fill the vacancy! With that "maverick" who the state convention had nominated for AG on the court and out of politics, the Gov. was then free to nominate the guy he'd really wanted who became the next AG. I inherited the newspaper clippings about all that--politics then was a lot different than now!

    I'm not saying judicial elections are always the answer, I'm just saying it is wise to be aware of the history and how the current system happened.

  • Grant Schott (unverified)
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    In 1988, a highly regarded judge (whose name I don't recall and that's part of the probelm with judicial races) lost the primary for Supreme Court to former state senators Vern Cook and Ed Fadely. Fadley won in Nov. Cook and Fadley were endorsed by hardly anyone, but their name ID gave them a huge advantage. The same was true when Kulongsoki was elected to the Sup. Court in '96. Jack Roberts, although expereinced politically, probaly is the least qualified for this positon, but his relatively well known name gives him a huge advantage. Gene Hallman, an experienced and highly regarded attorney, has a shot because of early support from the trail lawyers and unions, which could result in the money he needs to run a competative campaign. I know an attorney and an assistant D.A., both of whom I often refer to for judicial races, who think that Ginny Linder is the most qualified because of her experience on the bench and the respect she has earned there. Trouble is, there doesn't seem to be an active campaign for her and I can't even find a Linder campaign web site. I agree that our current system of electing Supreme Court candidates in Oregon leaves much to be desired.

  • LT (unverified)
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    Grant, The name of the Supreme Court candidate who should have beat Cook and Fadeley was Jelderks (sp?).

  • Amanda (unverified)
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    Judge Linder's website is: http://judgevirginialinder.com/

    There isn't a lot of visibility to any of the campaigns, I agree...I don't know much about the Hallman and Roberts (except for knowing Roberts's name b/c I'm a lifelong Oregonian), but from having read Judge Linder's writing, both as a judge and an advocate, as well as having watched her in court a number of times, I can say that she has the brains, the respect for the rule of law, and the temperment to sit on the state's highest court. That's why I'm supporting her candidacy.

  • Robert Harris (unverified)
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    I have sympathy for the candidates because judicial races are so unlike political races. (and maybe therefore a good reason why they shouldn't be lected at all, but maybe appointed) So people go to candidate forums perhaps thinking that there will be lofty political discussions about Measure 11 or Measure 27 and the candidates instead focus on their personal and professional background.

    I haven't met or appeared before any of these candidates but, based on what I know about the candidates, I'd say....Mr. Roberts is the least qualified because he hasn't practiced law in a while. Judge Linder and Mr. Hallman are both well qualified.

    I favor Mr. Hallman for the following reasons. He is from eastern Oregon. He has had the most legal experience. He's had the most varied legal experience while Judge Linder has never been in the private practice of law. I want someone on the bench thats had the experience of looking across a desk in an office and hearing a client say, help me.

    I really believe that the best judges are people who have dealt with clients directly. Dealt with their problems, foibles and tried to assist them against long odds. Career government lawyers, particularly ones who only worked in the Attorney Generlas Department, simply don't have that experience. Their experience is that government power is exercised in a reasonable way by reasonable people (after all they and their co-workers were all reasonable people right?). So they tend to be deferrential to the power of government and favor its agents in their rulings. I don't think thats necessarily a good thing. Particularly in matters related to personal and civil liberties.

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