Toward an independent judiciary

Russell Sadler

Efforts to pack trial and appellate courts with judges of a particular ideological persuasion inevitably leads to warning about “politicizing the judiciary.” To which the other side responds “judicial appointments are already political.” Well, sort of.

Judicial appointments are political, of course. But judicial branch politics is not the same politics as executive and legislative branch politics. The popular effort to treat judges the same way we treat governors and presidents, legislators and congressmen, threatens our historically independent judiciary.

Although the U.S. Constitution and all 50 state constitutions create three co-equal branches of government, each branch operates differently in the scheme we call “self-government.”

The legislative branch of government is an institution of first resort. If you do not like a law, persuade the legislative branch to repeal it or change it.

In more recent decades, with the proliferation of government agencies in the executive branch, people who did not like a rule or regulation often went to the agency to seek a rule change.

The judicial branch of government has always been an institution of last resort. If the legislative branch refuses to change a law or if an agency refuses to change a rule, those affected would then sue as a last resort, challenging the law or rule on procedural or constitutional grounds.

It is these relative rare cases of the courts interpreting the Constitution that trigger the most controversy, because they can make sweeping changes in the way we live -- Brown v. Board of Education ended segregation and Roe v. Wade raised abortion to a constitutionally protected right, for example.

Yet as sweeping as these constitutional interpretations can be, they are the least of what the judicial branch does.

Determining the guilt or innocence of those accused of committing crimes, applying law to a particular set of circumstances and settling disputes between private parties make up the vast majority of the judiciary’s daily work.

When you or I decide who to support for a position in the legislative or executive branches, we are usually looking for someone we hope thinks as we do and will vote for the things we care about.

But most lawyers -- the folks who represent you in the courtroom -- do not want a judge who is likely to make a ideologically predictable decision. Although many lawyers specialize these days, most lawyers are still generalists who have clients who want a favorable decision for them in their particular or individual circumstances, not an ideological decision.

A divorce lawyer may represent a mother asking for child custody in one case and a father asking for custody in the next case. No lawyer wants a judge who routinely and predictably gives custody to the mother. They want judges who are open-minded enough to listen to their client’s circumstances and conclude their client will be the best custodian. Predictable judges can be taken off cases by lawyers filing affidavits of prejudice on behalf of clients who believe they cannot get a fair hearing before that judge.

In civil cases, most lawyers want judges who they feel are bright enough to realize they are making a better argument for their client than the lawyer on the other side. The last thing lawyers want is a ideologue who belongs to the Federalist Society or the ACLU and decides cases accordingly.

That is why the politics of picking judges -- by appointment or by the voters -- is very different from the politics of picking candidates for positions in the executive and legislative branches.

That is why politicians often make poor judges. In Oregon most judges retire before their term is up, allowing the governor to make an appointment. Incumbent judges then stand for reelection, sometimes with an opponent, often without. Oregonians have not treated their judges like politicians so the judges rarely behave like politicians. But Oregonians’ sensible restraint is beginning to break down.

Interest groups now deliberately attack judges who do not decided cases according to their ideology. Self-proclaimed “victims’ rights” groups demonize judges who exercise discretion in criminal sentencing. A self-described “fathers’ support” group attacks judges who decide child custody cases in favor of mothers. Self-described “women's’ support” groups demonize judges who show any evenhandedness in domestic abuse cases. These organizations stage “courtroom watches,” filling seats with supporters of their cause in an effort to influence the judge in the case.

And, of course, the effort to recall a Marion County Circuit Judge who held Ballot Measure 37 unconstitutional, even before the case is reviewed by the appellate courts, is the most transparent effort to bully the judicial branch of government by those who demand cases by decided according to their ideology.

These developments are the biggest threat to an independent judiciary in recent history and we ignore them at our peril.

By Russell Sadler Jan. 08, 2006