A better way to choose judges.

Byline: GUEST VIEWPOINT By Arden Olson For The Register-Guard

Whether any rule was violated, reasonable people may fairly question the civics of Circuit Court Judge Lyle Velure first filing for re-election and then announcing he would withdraw after his preferred successor had filed for the seat (Register-Guard, March 9), effectively allowing him to choose his replacement. Perhaps that's why, after public reaction, he reconsidered his decision to withdraw.

The policy issues here, however, run deeper than this single circumstance.

Judges are elected in about half of the states, including Oregon. But the history in Oregon and elsewhere is filled with examples of those close to the election system manipulating it to produce what they believe to be good choices for judges.

Another seat is about to be vacant in Lane County, the first announced vacancy resulting in a contested election for the Lane County Circuit Court in 14 years. One reason such elections are rare is a custom that judges resign their posts more than 61 days before the end of their terms, which gives Oregon's governor the opportunity to fill the vacancy under Article V, Section 16 of Oregon's Constitution.

Such appointments provide the new judge the opportunity to stand for election as an `incum- bent.' In many cases, the exception therefore `swallows the rule' that we elect judges.

An assumption underlying that custom - and perhaps Velure's action - is that the electorate cannot be trusted to choose the most qualified, intelligent, fair or impartial judges. One reason for the assumption is that judicial candidates cannot say much while campaigning.

Under Oregon's Code of Judicial Conduct, candidates may not make any promise of conduct that might limit their `faithful, impartial and diligent' performance of duties and may not identify themselves with any political party.

Candidates are therefore limited principally to explaining their histories and to affirming that they will be impartial and diligent.

The other half of the states that select judges in other ways tend to use `merit selection' panels, empowered to explore the credentials and temperament of judicial candidates. They recommend finalists for appointment to an appropriate official, after which the judges so appointed must stand for re-election each term.

Colorado, to take a Western example, has a judicial nominating commission headed by the chief justice of the Colorado Supreme Court and including lawyers and non-lawyers from each congressional district. All vacancies for judicial positions are filled by appointment of the gov- ernor from a list of three candidates chosen by the commission.

Each appointee then stands for re-election, with the question: `Shall Justice (Judge) ... of the Supreme (or other) Court be retained in office?'

This `merit selection' process has been championed for decades by a national nonpartisan organization called the American Judicature Society (www.ajs.org), which has substantial research to support its belief that merit selection produces higher quality judges chosen for good reasons other than their political connections.

Oregon has a strong populist history, which makes it common wisdom here that merit selection never will be approved by our voters. Nevertheless, perhaps now is an appropriate time to seriously examine establishing a judicial nomination commission in Oregon.

If the initial selection of judges through free and fair elections is as unusual elsewhere in Oregon as it appears to be in Lane County, a judicial nominating commission would allow the public more real participation in the process, not less.

Arden Olson is a shareholder in the law firm of Harrang Long Gary Rudnick. He formerly served on the executive committee of the board of directors of the American Judicature Society.