20 Questions

With the election hitting the final weeks, I decided to offer our two candidates for the open seat on the Supreme Court of Oregon a chance to play 20 Questions.  I e-mailed both candidates, but only one of them has responded.

If Virginia Linder would like to respond, she may do so, and I'll happily post her response (if it arrives).

My questions to Jack Roberts appear below in boldface.  His answers are (mostly) in blue, in their complete and original form.  Editor's comments are in brackets.

1) During the primary, your opponent Judge Linder seemed to make gender diversity on the Supreme Court the centerpiece of her campaign.  Now that Governor Kulongoski has appointed Martha Walters to replace retiring Justice Riggs, has Judge Linder lost her message?

Diversity on the court is still important, but that means more than just race, gender or geography.  Diversity in life experience, judicial philosophy and occupational background are all important.  Even Willamette Week recognized this when they endorsed me, saying, “The court is stocked with justices who have backgrounds similar to Linder's; it has nobody remotely like Roberts.”

2) Speaking of Martha Walters, there appeared to be very little media attention paid to such an important act by the Governor.  If it was so important to put a woman on the court (and you yourself said it was important), did the media blow it?  Do the media think the people of Oregon don’t care about such matters?  Are they right?

I think there was a fair amount of media coverage of her appointment, but certainly it’s true that the media gives far less coverage to the judicial branch of government than they do to the executive and legislative branches.  It’s something of a chicken or egg situation:  Does the media not cover the judiciary because the public is less interested in it, or is the public less interested because the media doesn’t cover it?

3) It looks like the “term limits” measure has a lot of support.  It only applies to the Legislature.  Would it be a good thing to term limit judges in Oregon as well?

Probably not. One problem term limits create in the legislature is the fear that lame duck legislators will allow their official conduct to be influenced by their efforts to secure employment when they are forced out of office.  We don’t want similar suspicions about judges.

4) Speaking of ballot measures, Oregon seems to be a “leader” in giving the people control over government via the ballot.  The Oregon Constitution might be the most easily (and often) amended state constitution.  Should a constitution be so malleable?

That’s a policy decision to be made by the voters and the legislature.  What the courts must do is make sure the process is fair and operates according to the law.  People should be confident that the court is going to apply the same standard of constitutionality to all ballot measures, for example, and that those standards “should not expand and contract like an accordion from one case to the next,” as Justice Kistler complained in a recent dissenting opinion.

5) My law school didn’t offer a single course on Oregon constitutional law.  Should I be outraged?

No, but it is something I think Oregon law schools should consider adding as an elective.  For the most part, law schools instruct students in general legal principles, just as the bar exam tests would-be lawyers only on general legal principles, not the specifics of Oregon law.  Nonetheless, the independent development of Oregon constitutional law since the 1980's would make a fascinating subject for interested law students, as much for the principle of independent state constitutional jurisprudence as for the specifics of Oregon constitutional law.

6) Many conservatives hope that President Bush will be able to put at least one more Justice on the Supreme Court of the United States.  If this happens, there could be 5 reliable conservatives ready to overturn 40 years of liberal precedent.  What might this mean for Oregon?

The main impact this would have on Oregon, I believe, is an increased area for state regulation of subject matters that have been preempted by federal law over the past fifty years.  Not long ago, even a strong states’ rights advocate like Judge Bork conceded that the so-called commerce clause of the U. S. Constitution had given the federal government virtually unlimited jurisdiction over economic activity—and much noneconomic activity as well (e.g., the endangered species act, wetlands protection, etc.).  Today, that appears to be in question.  If federal jurisdiction is withdrawn from these areas, Oregon will no doubt move to regulate these areas instead, which may not ultimately be a victory for conservatives.

7) Many people think judges, especially at the Supreme Court level, don’t do much other than preside over cases.  What other, lesser known duties are required of the Supreme Court of Oregon, and how does your background give you the requisite experience?

The most important responsibility of the Supreme Court other than deciding appeals is the administration of the judicial department—including circuit courts and the Court of Appeals.  The primary responsibility for this rests with the Chief Justice (Paul DeMuniz), but I believe my past experience as a county commissioner gives me an insight into this area that the other justices don’t have.  Counties have the responsibility for providing and maintaining the courthouses for our circuit courts, and also fund the district attorney’s and sheriff’s offices.  I also have strong relationships with many in the state legislature and have offered to help the Chief Justice in working with that body as well.

8) Who is going to win this year’s Civil War game?  Point spread?

As a candidate for a statewide office, I’m not about to answer this question.  Anyone reviewing my resume, however, should be able to figure out who I’ll be rooting for.

[Editor's note: I have no idea what happened to the color...]

9) Now that I am finished with law school, I am working for a state administrative agency.  I’m getting my first taste of the world of administrative law.  One topic that comes up often at work is the trend in Oregon for administrative hearings to become more and more like traditional civil court trials.  Is this a good thing?

Probably not.  When I was the state labor commissioner, I fought the attorney general’s office over gaining the right for nonlawyers (generally, the owners or managers) to represent small corporations  in our administrative hearings.  I also fought them over the right of our hearings officers to make legal arguments before administrative law judges, rather than being forced to pay the attorney general’s office for the use of one of their lawyers.  I think administrative hearings work best when they are less formal and more accessible, including more affordable.

10) When the Supreme Court of Oregon issues an opinion, it makes what is essentially law for everyone in Oregon.  With this is mind, how should the opinion present the law?  Is it meant to be read and interpreted only by lawyers, or is it meant to be easily understood by every person in the state?

To the extent possible, I think court decisions should be written in a way that intelligent nonlawyers can read and understand the cases.  Whenever possible, technical legal jargon should be explained if it is necessary at all.  I don’t believe it is necessary to “dumb down” the decision to make it accessible to nonlawyers, and in fact I believe this will improve the clarity of thinking of most decisions for benefit of the writer as well as the reader.

11) Many people believe that everyone has a “right” to take their case to the Supreme Court.  The reality is that the Supreme Court gets to pick and choose its cases, and it turns down far more cases than it hears.  What would be your criteria for granting certiorari and hearing a case?

The principle criteria for hearing a case before the Supreme Court are whether the issue presented is likely to affect a broad range of people and cases, whether it presents an issue that has not previously been decided or which needs modification or change, and finally whether the decision by the court below was correct.

12) When John Roberts, who I assume is no relation, went to the Supreme Court of the United States, his young son stole the show.  Can we expect any show stealing from your family when you are elected?

I can only hope not!

13) When a controversial matter is before a court, courts often find excuses to avoid reaching the issue.  For instance, there was a federal case about the Pledge of Allegiance in schools where the court threw out the suit because the plaintiff, the father of the student, lacked standing to sue.  When a constitutional question is important to so many people, should the courts try as hard as they can to decide the actual issue instead of avoiding it?

There are a number of reasons why a court might not believe that an important issue is properly presented in a specific case and therefore may look for opportunities to decide the case on a lesser point of law, even a technicality.  The late Alexander Bicker, in his classic book on the Supreme Court titled The Least Dangerous Branch, called such avoidance techniques “the passive virtues” and made a strong case for situations in which the U. S. Supreme Court should “decide not to decide.” 

Nonetheless, in most cases, I believe the Supreme Court has a responsibility to tackle the tough issues and decide them.

14) Some people, like me, get frustrated at courts when we think the court went too far, when the court acted beyond its power.  How do you know when an opinion crosses the line from a legitimate exercise in jurisprudence to judicial activism?

That’s easy:  If you disagree with a court’s decision, it went too far; if you agree with it, then they were well within their power.

:-) [Editor's note: yes, he included a "smiley" in his answer.]

Seriously, there is no simple test for the proper exercise of a court’s power, but there are some indications.  If a justice consistently applies the same test to laws or policies whether they agree with them or not, that is a pretty good sign that the justice is taking a principled rather than a political approach to the question.  If a decision follows existing precedent as a whole, and doesn’t pick and choose among the precedents it likes, ignoring the rest or distinguishing them on the basis of false or overly technical distinctions, then the justice is probably engaged in principled decisionmaking.  And if a justice honestly admits the policy issues that enter into a decision, rather than pretending that policy issues don’t exist or are not acknowledged, you have greater confidence that the justice is not consciously or unconsciously disguising his or her personal views as the law.

15) Say a court makes a really bad decision, a clear case of judicial activism.  Years go by.  During that time, the bad decision is used as precedent and becomes accepted as established law by the legal community, even if many lawyers, scholars, politicians and citizens still agree the decision was a mistake.  Yes, I am thinking about Griswald specifically, but for this question it could be any hypothetical case.  If a future court overrules that decision using sound legal reasoning, is it still a form of judicial activism because it changes accepted and established law?

I don’t necessarily regard overruling precedent as judicial activism, although I do believe that judges should be cautious about overturning established legal principles upon which people have relied for years.  Nonetheless, the fact that “separate but equal” had been the law for nearly six decades certainly should not have discouraged the Supreme Court in Brown v. Board of Education from recognizing that separate schools were in fact unequal and therefore overturning this well-established but exceedingly harmful precedent.

16) What are three books every non-lawyer should read to have a better understanding of the judicial process, and why?

I would start with Benjamin Cardozo’s The Nature of the Judicial Process.  Although written in 1921 (it is actually based on a series of lectures), it remains the best account of a judge talking about judging.

Next, I would recommend Judicial Process in a Nutshell by William L. Reynolds.  The Nutshell series is written primarily for law students as a introduction to various topics of legal study but for that very reason are geared to nonlawyers and generally contain clear and understandable explanations of their topics.

Finally, for a good layman’s introduction to general legal principles, I would recommend Law 101 by Jay M. Feinman.  Although falling short of the promise of its subtitle—Everything You Need to Know About the American Legal System—it is an excellent survey of the law and the legal system for nonlawyers.

[Editor's note: click on book titles to buy them!]

17) Everyone has a right to represent oneself in court.  But, as the saying goes, anyone who represents oneself has a fool for a client.  Should the courts, indeed, should the legal profession in general, strive to make the law simple enough that a person can be sure to follow the law without having to consult an attorney first?

That is a worthy, but probably unrealistic goal.  In lawmaking, simplicity and fairness are often competing values.  Even simple laws tend to become complex as exceptions, modifications and qualifications are added to address differing circumstances and conditions.  I tend to favor making laws as simple and understandable as possible, but I have given up hoping that our reliance on lawyers will diminish as society becomes more complex.

18) Some of my neighbors are loud and obnoxious.  Should I sue?

It would probably be cheaper to move.  (But as an interim step, check and see if there is a local noise ordinance.  You may be able to report them to the police without having to take them to court yourself.  Unfortunately, most cities don’t have an obnoxiousness ordinance.)

19) What are the most important issues to Oregonians, and how does our Supreme Court impact these issues specifically?

Most Oregonians are concerned about things that are only tangentially related to government.  They enjoy the quality of life here in Oregon, which includes a great natural environment and recreational opportunities, but also includes more mundane things such as a roof over their heads and food on their table for themselves and their families.  That means they want a strong and sound economy to go with a healthy ecology.  They want their homes and families to be safe and they want good schools for their children and their neighbor’s children to attend.  And they want to be confident they will be able to continue to enjoy these things in the years ahead, just as they want their children and grandchildren and great grandchildren to have those same opportunities in the decades ahead.

Some of these concerns translate into specific political issues, but they also reflect a vision of the future in which the courts and judicial system also play a part.  We have a tripartite system of government for a reason.  The judicial branch operates as a critical check and balance to prevent abuse by the more political branches, the legislative and the executive.  We need justices who understand that, in Oregon, the court and the constitution belong to the people, not just to the lawyers and the judges.

20) Why should Oregonians vote for Jack Roberts?

I hope Oregonians will vote for me because they realize that while our court has plenty of bright and capable people on it, the background, experience and perspective they represent is pretty narrow.  With Justice Carson leaving the bench, the remaining six justices include three who have served in the Attorney General’s office and three who have been plaintiff’s lawyers.  Four of them come from the Court of Appeals.

If my opponent is elected, we will have four justices from the attorney general’s office and five from the Court of Appeals.  In fact, we will have three justices who worked for Ted Kulongoski when he was Attorney General and one who was his law partner in private practice. 

As a general practitioner, nonlitigation lawyer I represented individuals and small businesses, people who were trying to stay out of court and who wanted to know their rights and responsibilities under the law.  I think it is only fair to have at least one Supreme Court justice out of the seven who has that kind of experience.  Given the ages of the other justices, it may be a decade before we get another new justice on the court.

Again, the offer is open for Virginia Linder to play 20 Questions, or to respond to any of Jack Roberts' answers.

Think she will?

Comments

[Independent Thinker]

"Think she will?"

Nope.

[Kevin: Gully's school chum]

Another great post. Thanks as always for the information.

[Not a bureaucrat]

"Now that I am finished with law school, I am working for a state administrative agency."

The truth is out--Gully is now a bureaucrat. He's against government, except when it puts food on his table and a roof over his head.

[Gullyborg]

I've never been against government. In fact, I have more government experience that private sector experience. The Air Force is government, after all. I like government when it does its job and does it effectively. Without government, we would have anarchy or worse, tyranny of the majority.

Government done right is your friend. It's government run amok I can't stand.

Actually, my job is to eliminate problems and make Oregon a better environment for business. My immediate supervisor is a Ph.D. in economics, and her boss is a good friend of a certain Republican politician... so, you can guess where our organization would lean if it wasn't non-partisan...

BI really can't say more, for professional reasons, other than to say I think I am really good fit for the position!

[Boy Named Sous]

Not a Bureaucrat, and apparently, not big on logic either. Nice false dilemma, there, "Not".

[Boy Named Sous]

Also, I'm impressed with Not a Bureaucrat's ability to completely avoid addressing the real subject of the post.