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He's back.
Bob Tiernan, the brawler who for two terms masqueraded as a member of the Oregon House of Representatives before losing his seat last year, hasn't given up his holy war. His latest target? The Oregon judicial system. Tiernan wants judges to be more political. Or rather, more politically attuned to his views. He was furious last year when the Oregon Supreme Court threw out Ballot Measure 8, the initiative he backed that would have curtailed the pensions of public employees. "This is but one example of the judicial policymaking that the court has all too vigorously engaged in during recent years," Tiernan wrote in an article for the Oregon State Bar Bulletin. Tiernan then filed a number of initiatives with the secretary of state's office that would radically alter the way in which judges become judges. If approved, any one of these measures would do more damage to Oregon than anything Tiernan accomplished while he was in Salem. His efforts--which he is calling the "Judicial Election Reform Act"--could serve one useful purpose. They may make Oregonians more aware of how most judges get their jobs. Oregon judges rarely win their seats in contested elections. Most of the time, a judicial vacancy occurs when a sitting judge retires or takes another job. At that point, the governor appoints someone to fill the six-year term left by the vacancy. When the term is up, the appointed judge runs as an incumbent--often unopposed. Moreover, when judges run for reelection, the Oregon Code of Judicial Conduct prohibits them from commenting on how they might rule on future cases. As a consequence, judicial candidates are forbidden from making the sort of campaign pledges and position statements typical of most other candidates. Is this bad? Tiernan thinks so. He believes it makes the judiciary unaccountable for its actions. His initiatives would all but abolish gubernatorial judicial appointments. They would also lift the limits on judicial speech during a campaign. Though Tiernan's initiatives radiate with the sweet elixir of populism, his cure-all is dangerously subversive. It attacks the very idea of judicial independence--and it seeks to address a problem that simply doesn't exist. Remove the governor's authority to appoint judges and more people will be elected to the bench who have as their strongest asset name familiarity. In states where the governor's authority is limited in this fashion, the bench tends to be filled with politicians. (The highest-profile contested judicial race in Oregon in the past decade occurred in 1988, when Ed Fadeley, the former president of the State Senate, was elected to the State Supreme Court. Since then, Fadeley has been the subject of two major inquiries into his conduct--one involving campaign violations, the other sexual misconduct.) Lift the ban on what judges can say during a campaign, and candidates seeking election will make promises about their legal positions, thus undermining the impartiality that is the bedrock of the judiciary. The current process of appointing and electing judges may need some changes. None of them, however, can be found in Tiernan's initiatives. If approached by a signature gatherer for the "Judicial Election Reform Act," be advised: This is a wrecking ball passing for democratic reform. |
