Measures 21, 22: No.
It's a curious truth that the most dangerous statewide ballot measures tend to be those that have the most superficial appeal.
Measures 21 and 22 on the November general election ballot are the latest examples of wolfish initiatives clad in populist sheep clothing. Proponents insist the citizen initiatives would make judges more accountable to voters and representative of the state's ideologically and geographically diverse population.
Voters should not be fooled. The measures would degrade and politicize a judicial system that currently does a fine job of rendering impartial justice.
Measure 21 proposes amending the state's constitution to change the way judicial vacancies are filled. Judicial candidates now either run for election or are appointed by the governor when sitting judges leave office before their terms expire. The measure would require that all vacancies be filled by election and would preclude gubernatorial appointments, although some legal experts say the measure's language is unclear on this point.
The measure also would add "None of the above" to the ballot in all judicial races. If that option receives more votes than any candidate, then an additional election must be held until a candidate receives a plurality of the votes.
Measure 22 would require the state Supreme Court and Appeals Court justices to be elected from geographic districts, similar to the way that state legislators are elected. Candidates for the two courts would be required to remain residents of their districts.
Some Oregonians may be tempted to vote for these measures in the belief that they would improve the courts, making them more representative of - and answerable to - the people. The problem with that view is that it assumes the current judicial system is flawed and that voters have not been well represented by the judges they elect. That's simply not the case.
In fact, the current system works well. Certainly there have been cases and decisions that have been controversial - that goes with the judicial territory. But there has been no systemic failure that requires the changes proposed by either Measure 21 or 22. As the old saying goes, "If it ain't broke, don't fix it."
Measure 21 is the most problematic of the two proposals. The "none of the above" provision directly contradicts the purpose of elections, which is to fill offices. If the measure is approved, every time the "none" option would win in an election, a judgeship might well remain vacant for months.
The current system of gubernatorial appointments has worked well, providing smooth, swift transitions that have helped keep caseloads from backing up, and allowing bar associations to play a critical role in identifying qualified candidates. Measure 21 would trash that process and replace it with a mechanism that is at least partly aimed at making judges vulnerable to witch-hunts by special interest groups waging "none of the above" campaigns.
Measure 22 is a subtle attempt by its conservative sponsors to elect judges with similar political philosophies. Their hope is that requiring that judges be elected from largely rural districts in Eastern and Southern Oregon will produce that result, although that seems an uncertain outcome. Both urban and rural areas of Oregon have conservatives and liberals who might be interested in serving on the bench; hometowns are unreliable indicators of political inclinations.
The sponsors of Measure 22 do have one legitimate gripe, and that is the lack of regional diversity of the current Oregon Supreme Court and the Court of Appeals. All of the current members of the high court are from either Portland or Salem, and only one of the members of the appeals court lives outside the Willamette Valley. This regional imbalance is a fairly recent development in state history, and the court traditionally has included eastern, southern and coastal Oregonians.
It's unclear why that's the case, although the most probable answer is a lack of qualified applicants from outlying regions. Hopefully, the presence of Measure 22 on the ballot will prod future governors into keeping geographical balance in mind as they make appointments to the courts. But the reality is also that the courts, regardless of their make-up, have carried out their missions without any evident geographic bias in their decisions.
Measure 22 would also have the unhappy effect of turning Supreme Court and Court of Appeals justices into politicized representatives of their respective districts. Since 1910, judges have been elected statewide, with the result that they represent all Oregonians, and are not beholden to geographic interests.
Oregon judges aren't supposed to act like legislators, heeding special interests of constituents, whether they're farmers in Eastern Oregon or high-tech execs from the Interstate 5 corridor. Judges are supposed to uphold the constitution and hold sacred the rule of law, not keep voters happy back in the home district. Judicial impartiality is far too important a principle to sacrifice for the sake of ensuring regional balance.
Measures 21 and 22 propose major reforms for an Oregon judicial system that is not in need of reform. They would damage, not improve, the integrity and independence of the courts. Voters should reject both.