Oregon Senate should confirm judicial nominations made by the governor

by Bruce McCain

The recent election of John Kitzhaber as Oregon governor (again) will extend Democratic control of the executive branch to 28 consecutive years. That continuous dominance in the executive branch has produced a corresponding dominance of another branch of state government – and it is not the legislative branch. While distracted by the November gains and losses of Republicans and Democrats in the legislature, few Oregonians noticed the ongoing effect of a generation of Democratic gubernatorial appointments to the judicial branch of our state government.

While Oregonians continue to debate Ted Kulongoski’s 8-year legacy as governor, one fact is unmistakable. Kulongoski – himself a former Oregon Supreme Court justice – has literally shaped the state’s judicial branch more than any other contemporary governor. Besides directly appointing two of the seven current Supreme Court justices, Kulongoski has directly appointed five of the current ten judges on the Oregon Court of Appeals. Three of the remaining five judges are former John Kitzhaber appointees and one is a leftover appointee from Barbara Roberts. Only one judge earned his seat as an appellate judge by winning an election without first being an appointed incumbent.

Unlike our federal system where the president nominates judges subject to senatorial confirmation, Oregon’s constitution grants the governor the sole and exclusive right to fill judicial vacancies by direct appointment with no legislative input or oversight. As a result of one-party rule in the governor’s office for nearly three decades, Oregon’s judicial branch is populated with Democratic appointees who invariably win re-election in mostly unopposed elections. Of Oregon’s seven current Supreme Court justices, four were appointed directly to the Supreme Court by Democratic governors. The remaining three justices were elected to the Supreme Court after first being appointed to the Court of Appeals by Democratic governors.

While Oregon’s judges are elected on a nominally nonpartisan basis, the practical fact is that the vast majority of judges run unopposed. The typically huge undervote for unopposed judicial races indicates a disinterested electorate. This historical fact means that a judicial appointment by a partisan governor equates to a virtual lifetime position – until it’s time to retire or move on. At that point, the departing judge seldom allows their term to expire outright. Instead, they will resign midterm, thereby creating a judicial vacancy to be filled by yet another gubernatorial appointment. The newly appointed judge then has the right under ORS 254.085 and 254.125 to run as an incumbent and appear as such on the ballot and in the voters’ guide. And on goes the cycle of appointee-to-elected-to-resignation-to-appointee without any legislative input or oversight.

Vacancies in elected office occur at all levels of government, from the smallest town to Congress. Anticipating these vacancies, most jurisdictions have mechanisms in place to ensure the vacancy is temporarily filled until a replacement is elected. Depending on when the vacancy occurs, if an Oregon legislator vacates his or her position due to death, recall or resignation, the vacancy is filled by appointment by the county commissioners of the county or counties within that legislator’s district. In counties without a home rule charter, a vacancy in a county commissioner’s office is temporarily filled by appointment by the remaining commissioners, not by a single individual. The same process is employed by most cities and other governmental bodies in Oregon. City council vacancies are either left unfilled until an election or are filled by appointment by the remaining council members. It’s rare to find a city council vacancy filled by an unchallenged mayoral appointment.

Yet under Article V, section 16 of the Oregon Constitution, the governor alone has sole and exclusive authority to fill vacancies in state offices, including the Secretary of State, Treasurer (see Ted Wheeler), Attorney General, BOLI Commissioner, Superintendent of Public Instruction – and judges. Moreover, Article III, section IV expressly prohibits Senate confirmation of the governor’s judicial appointments. Attempts to amend that section have been met by opposition from judges and the Oregon State Bar, who argued that Oregon must have an independent judiciary – which apparently means a hand-picked judiciary without any legislative oversight or input.

In 1999 SJR 7, sponsored by Senators Gene Derfler and Neil Bryant, would have amended the Oregon Constitution to provide for Senate confirmation of all gubernatorial appointments for any judicial position, including appellate and trial courts. The rationale then, as now, was that appointed judges are seldom challenged or defeated at the polls and therefore become de facto judges for life. SJR 7 was met with vigorous opposition, primarily from the bar, which argued that any attempt to subject partisan judicial appointments to Senate confirmation would somehow “politicize” the judiciary. Of course, this argument naively or deliberately ignores the fact that Oregon judges are themselves elected officials, who almost always begin their judicial careers as appointees by a partisan governor who selects the appointee from a list of recommended applicants provided by the Oregon State Bar – with the Senate constitutionally prohibited from participating in this closed process. Ultimately SJR 7 was gutted and stuffed and never reached the voting public for a vote.

Other attempts at revising our constitution relating to judges have similarly failed to pass. In 2002, Measure 21, sponsored by Don McIntyre and Eric Winters, would have abolished the appointment process and would have required “None of the Above” to be included on the ballot. That measure failed at the ballot box, 668,256 to 526,450. That same election, Measure 22, sponsored by Steve Doell (Crime Victims United) and Norm Frink (Multnomah County Deputy District Attorney) would have replaced statewide voting for the state Supreme Court with seven Supreme Court geographical districts. Measure 22 failed to pass 610,063 to 595,936, due in large part to a 44,000 vote defeat in liberal Multnomah County.

Four years later, Kevin Mannix placed Measure 40 on the November 2006 general election ballot. Measure 40 would have required that all Supreme Court and Court of Appeals judges be elected by and residents of geographical judicial districts. Measure 40 failed 749,404 to 576,153. None of these citizen initiatives dealt directly with the issue originally addressed by 1999’s SJR 7, which was requiring Senate confirmation of the governor’s judicial appointments. Yet in their own way, each initiative sought to reduce or eliminate the ability of a single partisan governor to single-handedly shape the composition of one branch of our separated government without any input from the remaining branch.

The November 2010 general election presented a prime opportunity for Oregonians to weigh in on this matter without resorting to the time-consuming and expensive initiative process. With a 30-30 split in the House and a narrow 16-14 Democratic edge in the Senate, the legislature can demonstrate its professed commitment to bi-partisanship by resurrecting SJR 7 from 1999 and referring it to the voters. Under Article IV, section 1(3)(c), a legislative resolution referring a constitutional amendment is not subject to veto by the governor – in this case the infamous Dr. No version 3.0.

Moreover, now that Oregonians have approved annual legislative sessions, there is no excuse for not having the Senate confirm judicial nominations made by the governor. Any 2011 version of SJR 7 will surely be met with the same opposition by the same vested interests, led by a state bar that is the real power behind the current gubernatorial judicial appointment process. Yet Senate confirmation of gubernatorial appointments is nothing new in Oregon. The governor makes appointments to more than 200 boards and commissions, with many of those appointments requiring Senate confirmation each session. For example, the Senate must confirm appointments to the Commission on Asian Affairs, Oregon Commission on Black Affairs, Commission for the Blind, Commission on Hispanic Affairs, State Board of Direct Entry Midwifery, State Mortuary and Cemetery Board, State Plumbing Board, and Commission for Women.

With no offense to Asians, Blacks, the blind, Hispanics, midwifes, morticians, plumbers or women, perhaps Supreme Court Justices should be added to that list.

Portland attorney Bruce McCain is a retired Multnomah County Sheriff’s Captain and 20-year member of the Oregon State Bar who appears regularly in national and local media.