Introduction:
As a member of this committee it has been an honor to explore some of the concerns revolving around the judicial selection process in this Great State of Oregon. Oregon’s above average voter participations is an example of just how important democracy is to the individuals of the state. The committee has been asked to examine the nonpartisan judicial election process and to determine whether or not the non-partisan judicial selection has become increasingly partisan and more polarized. Both of which have serious consequences if unchecked periodically. As was said By James Madison in his writing of The Federalist No. 51, “It is of great importance in a republic not only to guard …show more content…
the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part.” (Madison) I believe this committee serves as a check on the judicial branch for the people of Oregon. The courts serve two parts. First, to interpret the legislation and regulations then construct rulings for them to be enforced, and second, to create precedents that will be followed in lower courts. More importantly, it is the duty of Justices to protect the minority groups and all other groups from potential oppression and tyranny from the government. Therefore, keeping the Judicial Branch of government completely separated from all partisan ties clears any questions regarding polarization.
I want to respectfully present these committee recommendations regarding the judicial selection process. I believe Oregon has a fairly sound judicial process with the exceptions of a few minor changes. These changes will be explained in further detail later in the recommendation. I believe there is an overwhelming support for our states judges and a deeper concern for the judiciary expectations. I do not believe it is my duty to attack the judges for the decisions they have made in the past. Although, I believe an honest evaluation of the current judicial selection system needs to be evaluated from an unbiased committee from time to time. Maintaining judicial accountability and dedication to the enforcement of the rule of law regardless of popular sentiment is this committee’s main precedence.
Thirty-nine other states have nonpartisan judicial elections similar to that of Oregon. ("") Idaho has the most similar system for all surrounding states. Another example is, Washington State, which has a similar process to elect their states justices, but differ in their judicial selection framework. Since 1931, Oregon has had nonpartisan elections for justice selection. Eighty percent of people overwhelmingly support the election process for judges. I believe fair voting practices are essential to the idea of democracy. The election process allows the people to hold Judges and Justices accountable for their decisions. Additionally, it forces candidates to know the people and the community they serve.
Although, our founders wanted federal judges to be appointed, simply because they weren 't held accountable to the public partiality or base their decisions on whether or not they would be reelected. I have given much thought towards this argument and disagree with it at the state level. If justices succumb to partisan politics and lose focus of maintaining judicial accountability, then the current system has several systems of check in place to insure the laws and rights have been protected for all. First, we have the election process. Secondly, we have a federal judicial system, which can hear issues that are not being protected through the state court system. Entrepreneurial litigation is a well thought out method for obtaining the results desired from a judicial decision. This interesting method has brought success to many social movements throughout the history of the United States. Desegregation is a perfect example of entrepreneurial litigation. Desegregation started with Plessy v. Ferguson and since has had many contributing cases to achieve the results we have today.
Oregon’s Current System:
Overview:
The Oregon judiciary consists of a Supreme Court, a Court of Appeals, and a Circuit Court.
There are also a few small tax courts and trial courts, but for this recommendation we want to focus on the three courts mentioned. Judiciary nonpartisan elections have been occurring in Oregon since 1931. Gubernatorial appointment is the method for filling interim vacancies within the courts. The governor makes the decision without senate approval with the exception in Circuit Court vacancies. The Oregon State Bar creates a preference poll in that circuit and information is then given to the Governor whom makes the final appointment. The appointed interim may run for retention election as an incumbent in the next general election.
Herein, lies the first faultiness in Oregon’s judicial selection process. According to Oregon Secretary of State, approximately eighty five percent of recent Oregon judges have been appointed and less than twenty percent of Gubernatorial appointments are being contested. Since 1983, there have been only two judges that were defeated in contested elections. (Yamaka)
This fact in itself raises many concerns regarding our judicial process and warrants this recommendation. We know from a political phenomenon called “the axiom of eighty” that eighty percent of the voters prefer to elect judges. As well as, eighty percent of voters do not know who is running for judicial vacancies. And even more alarming is the eighty percent of adults that do not vote for judges …show more content…
at all. These statistics raise questions that need to be asked in regards to our election processes.
Supreme Court Framework: The current Supreme Court framework is similar to that of the court of appeals in structure. The courts of the Justices are different. The Supreme Court hears appeals from the lower court as well as some unique cases. All Oregon Supreme Court candidates must be a United States citizen, as well as a state resident, which is currently practicing law in the state of Oregon for the last three years. Oregon Supreme court is constructed of seven seats with subsequent term of six years. The seats are constructed from a statewide geographic basis. One Chief Justice will be selected by peer vote for a term of six years. Which will be followed by a retention vote.
The powers of the Oregon Supreme Court derive from the Oregon Constitution’s Article VII. The court is primarily a court of review in select court of appeals cases or in cases where there is the need for interpretation of the law. The Supreme Court hears direct appeals in death penalty cases. In the direct appeal cases, the Supreme Court hears the case before the Court of Appeals.
Court of Appeals Framework: The Oregon Court of Appeals is structured very similar to that of the Supreme Court, but it serves as an intermediate appellate court. The Court of Appeals has a total of ten seats that are filled by nonpartisan elections. The Chief Judge is appointed from the Chief Justice of the Supreme Court. The term limit for Court of Appeals Chief Judge is two years. All Oregon Court of appeals candidates must be a United States citizen, as well as a state resident, which is currently practicing law in the state of Oregon for the last three years.
Circuit Court Framework:
Oregon’s Circuit Courts are general jurisdiction trial courts. These courts hear civil and criminal court cases. The Circuit Court is divided into twenty-seven districts. Most of the districts follow county lines except in eastern Oregon. Circuit courts differ in the fact that they are operated by the Oregon Judicial Department. There are 173 judge seats in total. All Oregon Circuit Court candidates must be a United States citizen, as well as a state resident, and currently practicing law in the state of Oregon for the last three years and a one year resident of the circuit.
Proposed recommendations:
Overview:
During the committee’s evaluation of the current judicial selection process several important insights surfaced. The committee overwhelmingly approved the current judicial selection process, with the exception of a few minor adjustments. I prefer nonpartisan elections as well, but I also see areas that can be amended to improve the independence and accountability of Justices in the state.
One of the more interesting facts that I found bothersome was the financial cost associated with election processes.
Given the current economic state of Oregon, each branch of government should be encouraged to take necessary cost savings measures, as long as the integrity of the court or accountability of judges is not jeopardized. This can be done by eliminating elections at the Court of Appeals and the Supreme Court levels and implementing an appointment system. The current framework of the judicial system creates voter redundancy. By this I mean, voters have to revote for judges and justices after the people had already voted them in at the different levels in the judicial branch. I propose the only elections for judges and Justices at the Court of Appeals and Supreme Court level should come from retention
elections.
Eliminating elections and creating an appointment system will require the creation of a committee that works in cooperation with the Oregon State Bar to create an assembly of potential candidates. The committee will be made up of good standing members of the community. All potential candidates for the Court of Appeals will be assembled from the lower Circuit Court Judges. The Chief Justice of the Oregon Supreme court will make the final appointment. This recommended framework eliminates the election processes. Appointed Judges are selected from a pool of elected candidates. Therefore, having a second vote to fill these vacancies is what I consider voter redundancy. My recommendation creates a system where Judges and Justices are gaining experience at lower levels and proceeding through different levels of the judicial branch. Each level strengthens judicial accountability and the interpretation of the law is greatly improved. At each level of courts the people will have elected the Justices and Judges.
Proposed Circuit Court Framework:
The general framework of the Circuit court will remain the same as the current structure with a few exceptions. I propose changing the current circuit boundaries. The current system has twenty-seven circuits with a total of one hundred seventy three Judgeships. My proposal is ignoring imaginary county lines and creating new ones based solely on population density. These lines can be adjusted for growth at any time in the future. Reducing the high number of circuits eliminates the complexity of a multi-branched level and introduces simplicity into the system. By reducing the number of circuits, the boundaries of the circuits will widen geographically. This is progressive in several respects. First, it serves as a check and balance to different courts and judgeships. Secondly, it allows for adversial legalism to flourish by creating a sense of judicial diversity.
Proposed Court of Appeals Framework: This level of courts shall remain the states intermediate appellate court. The framework will stay the same as that of the current system. The only change that I recommend is with the election process. This change should reduce any polarization or Majoritarian difficulty that is currently progressing within the branch. This could potentially bring a harmonious balance between judicial independence and accountability. The creation of a nominating committee is an essential aspect in a successful appointment process. This committee serves as an intermediary between the people and the powers of government. The members will be a good standing members of the community, and most importantly, no partisan ties. This committee will generate a small group of potential appointees. The appointees will be derived from the Circuit Court Judges. The Supreme Court Chief Justice will make the final appointment in filling interim vacancies.
Proposed Supreme Court Framework:
My proposed Supreme Court framework is similar to my proposed Court of Appeals framework, with the exception of who appoints and where the potential appointees are derived from. Oregon Supreme Court judgeship consists of a total of seven seats. I propose the vacancies are filled by gubernatorial appointment. Once again, a nominating committee working in collaboration with the Oregon State Bar would generate an assemblage of potential candidates from the Court of Appeals. This assembly would then be presented to the Governor, from which appointment decisions would be finalized. The Supreme Court Chief Justices are selected through a peer vote and have a term of six years. At which point, a retention election would occur every six years.
Conclusion:
Answering the original question, whether or not the nonpartisan judicial selection has become increasingly partisan and more polarized is complex. From the historical evidence that pertains to the framework, it seems very obvious to me that the “idea” of nonpartisan elections for judiciary candidates is not a reality in the state of Oregon. Only fifteen percent of our current judicial seats are from direct nonpartisan elections. The other eighty five percent is made up by gubernatorial appointment. This is clearly not the statistical numbers that would naturally be expected from a system of nonpartisan election. This fact in itself is enough evidence to warrant some implementation of reform for the judicial selection processes.
The intent and purpose the founding fathers had can be found throughout United States history. Judicial independence is as important today as was nearly two hundred fifty years ago. When the founding fathers were creating the three-branch government we have today. They Understood that they were not giving us a democracy. More importantly, they were giving us a Republic, the idea of a rule of law over all. In the United States the Constitution is the supreme law. Thomas Jefferson solidified the intent of the founding fathers in one of the sentences he wrote in the Declaration of Independence. Jefferson wrote, “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.” (Jefferson)
The framers of the Oregon Constitution also understood the importance of mandating nonpartisan elections for state Supreme Court Justices. In their minds this served as a check and balance between the people and the Justices. It allowed for Justices to hear public opinion, get to know the people of community that they are serving, and they are held accountable in the courtroom as well as the personal lives. Nonpartisan elections also gave the people the power to choose the most qualified candidate. It also gave power to the people by eliminating judges that did not perform to expectations. I don’t think the current selection processes is indicative of the framers concept. I think the volume of gubernatorial appointments that have made up judicial seats would appall the framers.
I strongly believe that making the recommended changes will improve judicial independence and interpretation of the law. Ultimately, these are two of the most important qualities individuals in the United States expect from our Judges and Justices. From the three branches of government the Judicial branch is the most important branch. This branch has the power to influence the other branches. The community must have a sense of confidence towards the judicial decision making processes. They need to believe that these processes are impartial and unaffected by outside influences. However, the people’s opinion and trust can be diminished by polarization and partisanship. The changes that I have identified are not major acts of reform. The Oregon Constitution can be modified to make the small changes. Confronting this one alarming fact where eighty five percent of the Supreme Court Judges are by gubernatorial appointment is an essential in lessening the concerns for polarization.
One last area I see that could use improvement is, within the people themselves. We know by the axiom of eighty phenomenon that eighty percent of people prefer to vote for judiciary candidates, but eighty percent of people do not vote at all, nor do they know who is running for candidacy. This lack of election enthusiasm is ultimately the loophole that the other branches of government have learned to use as a means of obtaining partisan ties within the judiciary branch. As a society, we should place more emphasis on the importance of voting. I have always held a hard line when it comes to individuals that want to question the integrity of election process, yet never participate in the election process. If you do not vote then do not complain! It is a very simple concept with complex consequences.
Bibliography
Madison, J.. N.p.. Web. 1 Dec 2013. .
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Yamaka, Julie . State of Oregon. Secretary of State. Oregon Blue Book. Salem,Oregon: Oregon State Archives, 2013. Web. .
Jefferson, T.. N.p.. Web. 3 Dec 2013. .