All Oregon judges are chosen in nonpartisan elections. If a judge leaves their position before the end of their six-year term, the governor appoints someone to serve out the remainder. The appointee must then be elected to keep the position. Why do we do it this way? What do other states do? How should I think about judicial elections when I sit down to fill out my ballot? Willamette University College of Law Professor and Associate Dean Jeff Dobbins joins us to answer these questions.
Note: The following transcript was created by a computer and edited by a volunteer.
Dave Miller: This is Think Out Loud on OPB, I’m Dave Miller. Over the last few weeks, we have been having a lot of conversations with candidates who are on Oregon ballots right now: people running for city council races, the governor’s seat, congress. But there’s another kind of elected official that can take up a lot of space on our ballots: judges. All Oregon judges are chosen in nonpartisan elections, unless they are appointed by the governor to serve the remainder of a term in the case of a vacancy. We wanted to get a better understanding of how Oregon’s system works, and how it compares to the way other states elect their judges. Jeff Dobbins joins us to talk about this. He is a professor and associate dean at the Willamette University College of Law. Welcome back.
Jeff Dobbins: Thank you very much for having me.
Miller: What’s the big idea behind judicial elections?
Dobbins: Well, we here in Oregon at least have elected judges since the beginning. The original constitution set up a system of electing our Supreme Court judges, and we’ve selected judges through elections ever since then. I think the point of elections of judges is to really ensure that the judicial system isn’t too insulated from the people of the state, to ensure that there’s failsafes in place to allow people to bull the judicial branch when they feel that it’s necessary.
Miller: In the last week since Politico broke the story of the draft opinion that would strike down Roe v Wade, there’s been a lot of talk about the power that some number, five or six or so, unelected US Supreme Court Justices, have over our lives. How do you think about that in the context of Oregon’s elected judiciary?
Dobbins: The states approach the question of selecting and retaining judges in a lot of different ways. Oregon is part of about 20 or so states that either have nonpartisan or partisan elections. Most of the states have some process by which the people have some way to say something about the election of their judges, and there’s certainly some value associated with that.
At the same time though, I think that there’s really legitimate concerns about electing judges. We want judges to do things differently than many and most political appointees and most elected officials. You don’t want judges to make decisions in cases based on what’s going to happen in the next election, but based on the law and what the facts are in front of them. We want our judges to be able to act independently, to follow the law, to know that they’re able to put their own opinions aside and put themselves in the shoes of the people in the entity whose cases that they’re evaluating. So there’s a real tension to having judicial elections, and that’s really represented in all of the different ways that the states go about this process.
Miller: So you said, a number of other ones have partisan or nonpartisan elections. What other systems for putting judges in their seats are there?
Dobbins: There’s a few different phases of having judges serve that the states approach differently. There’s the question of initial appointment. Here in Oregon, in theory, it’s based on a nonpartisan election process. But as a practical matter, if a vacancy opens up in the middle of a judge’s term, a judge decides to retire early for instance, or they’re required to retire early, then at least here in Oregon, the governor is able to appoint that individual to the open seat. But then they’re up for election the next time around. So that’s one way of approaching that initial appointment question.
But then after that, of course, there’s the question of what happens when that judges term is up. Some states only have retention elections, where people don’t get to run against sitting judges, but they only can vote yes or no. But here in Oregon at least, it’s at least in theory, an opportunity for an open election, and anybody could run against a judge that’s currently sitting.
Miller: Do judges in Oregon retire or step down midterm on purpose, specifically so that the governor will appoint an interim successor, thus granting a kind of quasi-incumbency?
Dobbins: I mean, I expect that there probably are a lot of different motivations for judges. I think most of the time, judges get to the point of being ready to leave office and move on to other things, and they don’t necessarily think specifically about serving out their term, because of the length of time that judges generally sit here in Oregon and the fact that generally speaking incumbents are reelected in Oregon, I think people are often making decisions just based on what makes sense. And there is also a mandatory retirement age at 75. So a lot of times, judges will simply retire when it works for them.
That said, there probably are at least some judges who think, “well, maybe I’ll go ahead and retire early, it seemed to work pretty well when I was appointed to the bench initially as a judge by the governor, and so I’m going to create that opportunity in this circumstance as well.”
Miller: Effectively, is it fair to say based on what you’ve just been talking about, that even though we do have an elected judges system, to a great extent, we also have a kind of appointed judicial system, just because of the power of that incumbency.
Dobbins: I think that that’s absolutely right, and this is sort of an interesting aspect of the Oregon system, in the sense that yes, we have nonpartisan elections, but as a practical matter, it’s very rare for a an incumbent judge to to have an active opponent, for somebody to come out of the bench or the bar and decide to run against somebody who’s already sitting in office. And as a practical matter, that really means that, as you point out as a practical matter, we’ve got a gubernatorial appointment system that will last until either somebody retires or until somebody decides to run against a sitting judge, which as I said, is relatively rare.
Miller: And how do those appointment systems work? I imagine it may vary from governor to governor, but how are these judges chosen in the first place?
Dobbins: Ultimately, it really comes down to the governor. The governor gets the ultimate say and who it is that’s appointed. The Oregon State Bar has a process by which interested candidates can submit their names to the Oregon State Bar, who then reviews candidates to see what kind of background they have, if they have any experience or appropriate experience in either trial courts or appellate courts. And then the governor often will run, also at the same time, a small selection committee of people that the governor trusts to to think carefully about who is qualified for this position. But ultimately, it’s the governor who makes the final determination for these initial appointments to open seats.
Miller: In the relatively rare cases when there are contested judicial elections, how should voters approach them? What kind of information is available to us, and what kind of information do you think is most important to consider?
Dobbins: I guess the first point is that, when there are competitive races for a judicial position, I think it’s really important that people recognize how significant it is. An individual judge, if it’s at the county level, can have a significant effect on individual cases in the county courts. If it’s an appellate court judge, they can have a significant effect on the law for years to come in appellate cases. These are six year terms, which are some of the longest terms of any of the elected offices in the state. So it’s important to do your work, and try to do something more than just trusting your gut, or looking at the name and whose name you like better. People are busy, I know, but especially for judges, this is important.
In terms of what to look at, you can always look at the voters pamphlet to see if anything’s there, but there’s often not a lot. Judges are actually a little bit unusual. Judges and judicial candidates have to work pursuant to the Oregon code of judicial conduct, which actually limits what it is that they can say, and how they can go about saying it during the course of an election. So often, it may feel like you’re sort of working in the dark.
But that said, doing an internet search, you certainly can do that. Google the candidates names to see if there aren’t any surprises. Look at their campaign committees’ web pages. Look at endorsements, look at the people that those judges or those individuals work for, and see what they think about them, other judges, other attorneys, other litigants. And of course, if you’ve got a sitting judge, you certainly are able to go out and look at any opinions or cases that they may have decided in the past years as well. There’s a real body of work for at least incumbents that are sitting on the appellate courts, and that’ll give you a chance to go and look and see what you think about their decision making.
Miller: All of that was in response to a question about contested judicial elections, but there are a ton of uncontested ones, where the incumbent just puts their name again, and there may be a little bit of information in the voters pamphlet about them, maybe not even that much. That’s not uncommon at all. How do you think about uncontested judicial elections?
Dobbins: Yeah, this is really a hard circumstance, and this is one of these situations where the way that Oregon’s system works is a little different than other states. As I said, there’s about 19 states out there that have retention elections, where you actually can say, with respect to a sitting judge, yes or no. And that’s not really how it works in Oregon. If there’s only one person running, then there’s only one person running and they’re going to win.
That said, it never hurts to remind yourself of who it is that’s serving as a judge in your county or on your appellate courts, and doing a little bit of looking around and seeing who it is that’s on the ballot is never a bad thing, if you’ve got a moment to do it. I would note that it doesn’t mean that the system is unchecked. There are systems in place to make sure that judges who are in office are doing their jobs, and aren’t falling short on it. There’s a statewide commission that reviews complaints about Oregon state judges and justices, and can investigate in circumstances where there might be allegations about people that are doing things that they shouldn’t be doing, or that they’re not able to do their work. There are checks in place, but it’s not solely dependent on the elective process.
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