A Primer

Unlike the U.S. Constitution that separates the political and legal functions of government by making both the structure and personnel of the judiciary dependent on the legislative and executive branches, Oregon's Constitution requires that leaders of all three branches answer directly to the people.At least that's how the theory goes.

The vision of the Oregon Constitution involves a robust political competition of ideas and philosophies so that the people can make the best possible decision between candidates. While within the legislative and executive branches this vision remains, in the judicial branch such competition long ago dissolved. Although one could easily lay blame on early 20^th century Progressives who eschewed politics in favor of a more "orderly" administrative state, some blame likely falls to the people themselves as we seemingly confer a type of reverence to the judicial robes that places judges above the political fray.

Thus a pattern that dramatically favors the political party in power has emerged:  It's all a matter of timing. Judicial terms of office are six years. When a judge is ready to step down, the move typically occurs near mid-term, i.e. about three years in. Had the judge decided to step down at the end of the term, the vacancy would likely have attracted at least a couple of lawyers or judges serving in a different capacity. Instead, the governor is "forced" to fill the vacancy. When the term expires, the judge faces the people for the first time, virtually always unopposed.

Take as an example the case of Timothy Sercombe, who retired from the Oregon Court of Appeals in 2017. He was appointed to the bench by Gov. Kulongoski in 2007, a little over a year before the end of the term. He ran unopposed in 2008 and was (of course) elected. When in 2012 a position on the Supreme Court opened, he sought election to it along with two other candidates. He lost. Again in 2014 he ran for a second full term on the Court of Appeals. Again, he was unopposed. Although his term doesn't expire until 2021, he stepped down only three years into his term, making it possible for Gov. Brown to appoint the replacement.

Wash, rinse, repeat.

What makes Sercombe interesting is that in August 2012 he wrote an article for the Oregon State Bar Bulletin in which he asserted, "It's difficult and expensive to run a statewide judicial campaign, and it poses a particular challenge in that voters have less information about how courts work, from which to make political judgments, than they do about what their state legislator or governor is doing." Uhhh, news flash, judge, there's no point in campaigning when you're UNOPPOSED. While he is correct to say that voters have little idea what a judge does and the role one plays in the political sphere, the blame lies squarely on the shoulders of the lawyers and judges themselves by placing rules and even laws over the electoral process that are unique to judges and that serve only to shroud them in mystery and, in general, make them unresponsive to voters.

The Revised Oregon Code of Judicial Conduct states that judges and candidates for judicial positions must not:

• make pledges or promises of conduct in office that could inhibit or compromise the faithful, impartial and diligent performance of the duties of the office;
• publicly identify, for the purpose of election, as a member of a political party other than by registering to vote;
• personally solicit campaign contributions in money or in kind.

Oregon Supreme Court, Position 1

Van Pounds is challenging Justice Thomas Balmer on a platform of reforming (eliminating?) the practice described above and returning the process to the people.

Oregon Court of Appeals, Position 11

Kyle L Krohn is challenging Judge Joel DeVore.