Judges as politicians

Every time a judge is challenged for one of his or her decisions, particularly if they are challenged at the polls, the legal community draws itself up to its full self-importance and intones those heady pronouncements about the “independence” of the judiciary. The bar association renders its collective wisdom and warns the populace that it should not hold judges accountable for their decisions lest judges start making “political” decisions.

That would be a legitimate argument but for two very important factors.

First, judges are uniformly making political decisions already. For the first hundred and fifty years of the nation’s history, judges studiously declined to engage in making policy. When the legislature failed to address a policy issue, the judiciary avoided engaging in the debate by simply noting that such was the responsibility of the legislature and declining to rule further. More importantly, when the legislature (or the people through the initiative process) acted directly on an issue, the court’s accepted the judgment of the policy makers. The only time such matters were overturned was when the actions were in direct violation of the actual language of the state or federal constitution.

Not so in the period following the 1960’s. We saw the courts order bussing (a failed social experiment) without any identifiable authority. The courts moved on to legalizing abortion on demand despite the almost universal rejection of abortion by the state policymakers. In doing so, it had to invent rights that did not exist and cannot be found in the language of the federal constitution – only in the penumbra – the halo of the constitution. What a crock, but such reasoning threw the doors wide open to the courts to engage in policymaking. Since that time we have seen the courts legislate in virtually every field including environmental policy, school financing, foreign policy, military policy, and even, most recently, marital policy.

In Oregon the courts have declared live sex acts as “protected speech”, thrown out term limits, overturned land use regulatory reform, invalidated victims’ rights provisions, and virtually destroy the people’s initiative process. In each case they either made up law (live sex acts) or ignored the stated policy of the legislature and the voters.

When the courts went beyond judicial restraint and engaged, repeatedly, in establishing or overturning policy, they have entered the world of regular politics and, like the governor and the legislature, voters have every right to hold them accountable for their policy decisions.

Second, the Oregon constitution makes judges ELECTED officials. There has been a concerted effort ever since the reign of Neil Goldschmidt to bypass the electoral process for judges. Judges serve a defined term of years. It is now customary that a judge “retire” prior to the end of his or her term so that the governor can appoint a successor. A successor who then enters the next election with the coveted designation on the ballot of “Incumbent.” A successor who has demonstrated an adherence to the political philosophy of the governors (all liberal Democrats). A successor who the governor and liberal Democrats can count on to be the last line of defense in the policymaking debate. A successor who will act when the legislature does not or overturn the legislature if it doesn’t act “progressively.” On today’s Oregon Supreme Court we have a former law partner of the governor, a former assistant to the governor, the incestuous relationship with this governor and the string of former Democrat governors is embarrassing. It is politics pure and simple and for the bench and the bar to argue that it should be immune from the rough and tumble of politics is hypocrisy at the highest level.

Leaving aside the invidious way most appellate judges reach their position, they still must, at some point in time, face the voters. How can voters make intelligent choices about judges unless they can engage in a discussion of their rulings, especially rulings that appear to be at odds with the legislation and voter initiatives? Judges already enjoy an enormous advantage on the ballot by being delineated “Incumbent” – a privilege not enjoyed by any other elected official (partisan or non-partisan). If people are denied the opportunity to debate the propriety of a judge’s decisions, what is there upon which voters can make an intelligent choice?

Are you to vote on their physical appearance, their choice of dress, their age? No, there is a reason that the constitution made judges elected offices. Theoretically, judges should be responsible to the law, but when they became the “creators” of law, then they should be responsible to the voters.

So if the bench and the bar want to continue to argue that judges should be immune from an examination of their decisions, then they should tell the judges to go back to interpreting the law instead of making new law.