Is There an Independent Judiciary When We Need It Most?

An article in the Lebanon Express on Monday noted that Supreme Court Justice Lynn Nakamoto will retire at the end of this year. At first glance there is nothing remarkable about the article or the fact that Ms. Nakamoto is retiring. It is this sentence in the article that caught my attention:

“Justice Lynn Nakamoto is retiring from the Oregon Supreme Court, and Gov. Kate Brown is seeking applicants for the appointment.”

There was something niggling in the back of my head about the timing of the retirement and the announcement by Ms. Brown. Something struck me about the frequency of judicial appointments – particularly to the Oregon Supreme Court – that just didn’t seem right.

Article VII, Section of the Oregon Constitution provides:

“Section 1. Courts; election of judges; term of office; compensation.
The judicial power of the state shall be vested in one supreme court and in such other courts as may from time to time be created by law. The judges of the supreme and other courts shall be elected by the legal voters of the state or of their respective districts for a term of six years, and shall receive such compensation as may be provided by law, which compensation shall not be diminished during the term for which they are elected.” (Emphasis supplied)

A quick check of the biographies of the seven members of the Oregon Supreme Court confirmed that every single member of the court had originally been appointed rather than elected to the Court. Not a one had stood for election originally. The power to make such appointments is vested solely in the Governor and requires no “advise and consent” by either the Oregon House of Representatives or the Oregon Senate.

A further check back indicated that in the last three decades that the Democrats have owned the office of the governor the overwhelming majority of the members of the Supreme Court were initially appointed rather than elected. There was a brief period between 2006 and 2012 when four justices were originally elected. A similar review of the Oregon Court of Appeals indicates that that since 1986 of the thirty-three people to join the court only two were originally elected, the remaining thirty-one were appointed by a Democrat governor.

To be fair the Oregon Constitution limits the term of the appointment to the next general election that is greater than sixty days from the appointment and at which time the recently appointed justice must stand for election. Fair is fair, but context is important. With startling regularity, judicial incumbents run unopposed. So while the Oregon Constitution contemplates an election, it is the appointment by the Governor that is the routine path to selection and subsequent incumbent advantage.

And while fair is fair, actual practice is disturbing. Few of those appointed to the Oregon Supreme Court or the Oregon Court of Appeals complete their terms thus allowing the citizens to make the determination of who will be the next justice. The overwhelming majority resign before their terms are completed so as to allow the sitting governor (all Democrats) to appoint their successors.

Again to be fair, the workload of the Oregon Supreme Court and the Oregon Court of Appeals is largely apolitical. By that I mean the matters presented have little or no relevance to political philosophies or loyalties. But today we are confronted with an unprecedented wave of executive orders published under “emergency declarations” by Gov. Brown (D-OR). And while Ms. Brown routinely advances “science” as the underlying rationale and support for her edicts, she has yet to point specifically to any scientific study that supports her actions. (Remember there is a difference between an actual scientific study and a scientist speculating. It is the difference between Pfizer BioNtech and real science and Anthony Fauci and off the cuff speculation.)

Those emergency orders have closed private businesses, restricted government functions, closed government proceedings to the public, closed public schools, restricted travel, endangered the health of children by mandatory masking, eliminated competency in reading, mathematics and science as a prerequisite to graduation, spread the fear of contradictions and uncertainty, and set neighbor against neighbor – all without revealing the underlying facts justifying such actions. It is at this point that the very preservation of freedom is primarily dependent on an independent judiciary – unbeholden to political parties or political positions. It is for that reason the founders of the Oregon Constitution chose to make the judiciary a non-partisan office.

The question now is whether the current practice of resignations before completion of terms in order to allow a partisan governor’s appointment to all of the members of the court distorts that non-partisanship. As challenges to Ms. Brown’s arbitrary mandates rise will the Oregon Supreme Court and the Court of Appeals render decisions based on the constitution and the law or decisions that will “secure” the authority of those who have appointed them. The first blush is not promising when the Oregon Supreme Court halted a District Court’s preliminary injunction against Ms. Brown striking down COVID restrictions on churches.

For decades, liberal/progressive/socialist have relied on the judiciary to impose obligations that they failed to obtain through the traditional legislative process. The rise of a 6:3 conservative majority in the United States Supreme Court has driven a stake through the heart of that reliance and caused the extraordinary dyspepsia by Democrats during the Gorsuch/Kavanaugh/Barrett confirmation process. In contrast those same liberal/progressive/socialists have secured the makeup of the highest courts in Oregon through the current process.

This is a case when a lawful process is abused to create a partisan control over a branch of government. Oregonians should be outraged.