Skip to main content
As soon as Jan. 27, the Oregon Supreme Court will determine whether Democratic candidate for governor Nicholas Kristof will be on the May ballot—and they’ll decide what both sides portray as a fundamental question of democracy with the help of two retired judges whom the court, rather than voters, decided should hear the case.
On Jan. 13, court officials filed a notification that because one of the seven court positions was vacant and one sitting justice, Chris Garrett, had recused himself, presiding Justice Meagan Flynn appointed two retired justices, Jack Landau and Lynn Nakamoto, to fill the empty spots as “pro tempore” judges.
Nakamoto retired from the court Dec. 31, 2021. The court then brought her back from retirement to hear the Kristof case, along with Landau, who retired from the court at the end of 2017 (his retirement allowed Brown to appoint Justice Adrienne Nelson).
Some lawyers have noted an irony: The state’s highest court will, in Kristof’s case, interpret what the Oregon Constitution requires of candidates while itself only loosely obeying the constitution.
The requirements for Oregon judges—including those on the highest court—are stated clearly in the constitution: “The judges of the supreme and other courts shall be elected by the legal voters of the state or of their respective districts for a term of six years.”
“Shall” in legal terms means “must,” yet neither Nakamoto nor Landau is currently elected. In fact, the Oregon judiciary and Oregon governors long ago decided that the election of judges was not something they always wanted to entrust to voters. (The constitution does allow allow for the appointment of temporary, or “pro tem” judges.)
In practice, when judges on circuit and appellate courts determine their tenure on the bench is done, they often retire early so the governor, rather than the voters, choose their successors. Once on the bench, incumbent Oregon judges rarely lose elections.
Take Nakatmoto, one of the retired justices selected to hear the Kristof case: Gov. Ted Kulongoski appointed her to fill a vacancy on the Oregon Court of Appeals in 2010 (she won election unopposed in 2012); Gov. Kate Brown appointed her to the Oregon Supreme Court in 2015 (she won election unopposed in 2016).
Judicial elections in Oregon are nonpartisan and, until recently, were rarely contested.
Since taking office in February 2015, Brown has appointed 48 judges, including five to the Oregon Supreme Court and 10 to the Oregon Court of Appeals. (Her latest appointments, made last week, are not included in the preceding list but are included in the totals.) Other states use a variety of methods to select judges.
Anyone who’s followed the controversy over whether Kristof meets the Oregon Constitution’s three-year residency requirement will have heard impassioned arguments about ballot access from his camp and about following the letter of the law from the state’s top elections official, Secretary of State Shemia Fagan.
After Fagan ruled Jan. 6 that Kristof did not meet the state’s residency requirement, Kristof, the former New York Times journalist who grew up in Yamhill, said at a press conference his disqualification was an affront to democracy that punished him and, possibly, other candidates in the future.
“A failing political establishment is protecting itself,” Kristof said.
In a request the following day to the Oregon Supreme Court for an expedited appeal (which the court granted), Kristof placed the issue in loftier terms.
“At stake is nothing less than the right of Oregon voters to freely choose their next governor,” his attorneys wrote. “A candidate’s success should be determined by his or her policies and character—not the unilateral decision of a government official.”
For her part, Fagan, who, like Kristof, is a Democrat, said she was simply enforcing the bedrock principles upon which the fairness of Oregon’s elections depend.
“My focus throughout this process has been to make sure Oregonians can trust the accuracy of their ballots,” Fagan said last week when the Oregon Department of Justice filed her response to Kristof’s brief. “I have a duty to Oregon voters to make sure every candidate on their ballot is qualified to serve.
“The rules are the rules, and they apply equally to all candidates for office in Oregon,” she added.
Kristof and the state have filed their arguments with the court: Kristof now has until Jan. 26 to respond to Fagan’s brief and, after that, the justices, including the two retirees, are scheduled to begin deliberations.
Some lawyers watching the proceedings see an irony in unelected justices hear the case; others think it’s simply a matter of expediency which harms nobody.
Subbing in retired justices wasn’t always the top court’s policy, says Todd Sprague, a spokesman for the Oregon Judicial Department.
“Before 2017, the court’s practice was to ask court of appeals judges to sit as pro tem judges on the Supreme Court when needed,” Sprague says.
“Since 2017, however, the supreme court has experienced a higher number of retirements than in prior years, such that several retired Supreme Court justices have been available to sit as pro tems.”
Sprague adds that the availability of those judges and the extensive workload of the Court of Appeals contributed to the change.
“The court’s practice since 2017, therefore, has been to have senior Supreme Court justices join cases with fewer than seven participating members, rather than Court of Appeals judges.”