With the ongoing discussion of efforts to change or end merit selection/commission based appointments for judges, it’s worth noting that there have been recent efforts to adopt such systems including a new one this year in Oregon that is relatively unique. HJR 15 provides vacancies on the Supreme Court and Court of Appeals are to be filled by the Governor from a list of three names (and the ability to ask for three more for a total of six names) from a new Commission on Judicial Nominations. Judges/justices seeking additional terms would not have to go to the voters in a retention or other election; instead they would be evaluated and reappointed by the Commission alone.
The Oregon proposal appears unique for several reasons, mostly notably in the level of detail regarding the entire process that would be put directly into the state’s constitution. Many if not most states leave the details over nominating commission membership and practices to the legislatures or the commissions themselves. For example the constitution of Utah (perhaps the closest state geographically with a comparable system for selecting judges) simply specifies vacancies are to be filled by the Utah Judicial Nominating Commission and leaving the legislature free to set “by statute [ ] the nominating commissions’ composition and procedures.”
Oregon HJR 15 by contrast is much more detailed; the Commission would have to “strive” to:
- create the best possible bench to ensure fair and impartial courts and access to justice for all Oregonians
- insulate judges from the real or perceived influence of campaign contributions and the undue pressures of politics
- make the judicial selection process accountable and transparent to the public
- institutionalize mechanisms for ensuring diversity on the bench
- ensure the most qualified candidates are selected
- safeguard the impartiality of the judiciary; and
- build in checks and balances to the judicial selection process.
The Oregon plan also calls for the 9 member Commission to have a specific membership: 2 lawyers, 2 judges, 4 nonlawyers, and a college/university president.
- Two members of Oregon State Bar with different legal backgrounds appointed by Board of Governors of Oregon State Bar
- One Circuit Court Judge who presides over civil cases appointed by Governor
- Chief Justice or the Chief Justice’s designee
- One nonlawyer appointed by unanimous agreement of the Senate President and Minority Leader
- One nonlawyer appointed by unanimous agreement of the House Speaker and Minority Leader
- Two nonlawyers appointed by the Governor after public application
- CHAIR: President of institution of higher learning that contains a law school on a rotation basis; president’s designee may be used. The Chair would only be allowed to vote to break a tie.
Those people appointing members to the Commission (Board of Governors of Oregon State Bar, Senate President and Minority Leader, House Speaker and Minority Leader, and Governor) would themselves be required to “consider geographic, ethnic, gender, and professional diversity” in their picks.
Beyond these details the legislature may “adopt additional provisions governing the membership and procedures of the Commission…”
As to the how judges would remain in office, the Oregon plan calls for the Commission itself to “evaluate the judge and determine whether to retain the judge for another term.” The only state that has such a commission reappointment system is Hawaii; the District of Columbia has something similar as well.
HJR 15 is currently pending in the House Judiciary Committee.