Why yes, as a matter of fact, I do know Jack

Jack Roberts, that is.  I had the pleasure of meeting Jack a few weeks ago at a symposium on public interest and public service law.  We chatted for a few moments, and I asked him if he'd be interested in sitting down sometime to discuss the Supreme Court and his possible campaign.

Well, we finally had that sit down... 

I was optimistic before about the possibility of electing Jack to our Supreme Court.  After spending an hour with him and discussing it, I can now say that I am downright enthusiastic and am ready to fully support his campaign.

Here now are the highlights of our meeting.  His words appear in red, my words to him in blue, and black text will be used for my after-the-fact commentary...

The first thing I asked Jack about was who else might be in the race.

Jack:

The only other person currently running or likely to be running is Gene Hallman.  He’s a trial lawyer from Pendleton.  He is a well respected and experienced trial lawyer, very active in the Oregon Trial Lawyer’s Association, which is the plaintiff’s lawyers association.

I did a little research on Hallman.  He is certainly respected and well-qualified.  But I am concerned about the stance he would take on a number of issues, especially regarding liability.  Hallman has a record of supporting any cause that is good for trial lawyers.  His election to an already decidedly liberal activist court in a state that is already known as being somewhat unfriendly to business could have a chilling effect on the economy.

Hallman is also apparently eager...

Gullyborg:

Is he officially a candidate?

Jack:

He has filed.  He actually went down and filed the day Wally Carson announced he wasn’t going to run again.

I have no idea what is involved with filing.  But I'm guessing it would take someone time to research the election law, find the right forms, and get to the proper office in Salem to file.  So it sounds to me like Hallman must have been preparing ahead of time.  After all, because Oregon's Constitution has an upper age limit of 75 for Justices, it is clear that, had Carson decided to run again, he would be forced to retire before his next term ended.  Many people have probably been speculating that Carson would simply retire after this term, rather than serve a portion of next term.  So it wouldn't be hard to imagine a shrewd attorney getting his ducks in a row early, then waiting for Carson to officially announce his upcoming retirement to file.

But that's all speculation on my part, of course.

I asked Jack if he had been planning ahead, waiting for Carson to retire...

Jack:

This isn’t something I had really thought about doing, my experience not being a trial lawyer even when I practiced and I don’t have any judicial experience.  So my first thought was no.  I’m not the kind of guy… you expect either a trial lawyer, or a judge, someone who’s worked his way up.

Ironically, at this same time, we have Harriet Miers... People talking about her qualifications, and the notion of going outside the bench and getting lawyers who have other types of experience, made me start to think about this.

I was also curious about who might be encouraging him to run...

Jack:

There is a lot of encouragement from a broad range of folks, not just Republicans.  This is not a partisan thing.  There are people from the medical community, the business community, natural resources community, Crime Victims United, that was one of the groups that contacted me because they are concerned about where the court is on some of their issues, even people like Right to Life, even though I’m pro-choice.  I’ve always had a good relationship with them because I’ve always respected their goals and understand their position—they don’t feel like they’ve gotten that from the court.  So, from that standpoint, I think there is a lot of interest, a lot of support.

One important aspect of this race is that it will be an election for an open seat.  Most judicial vacancies in Oregon occur when a sitting judge retires in the middle of a term, allowing the Governor to appoint a replacement.  That replacement then has the power of incumbency in the next election.  So why is this so important?

Jack:

Of the seven Supreme Court justices, only one of them was elected, and that was Paul De Muniz.  The others have all been appointed.  So I think that in that sense there is a built-in desire to have somebody get on there who will have a different perspective.

Well, unless Carson retires early to allow Kulongoski to appoint a replacement, we're certainly going to end up with an elected Justice, no matter how the race turns out.  But will it be Roberts, or Hallman, or someone else yet to file?

Gullyborg:

I read in the paper that you would consider dropping out if a well-qualified woman were to enter the race?

Jack:

Those were the words that they used.  What I actually told them was, if a really strong woman candidate came in who looked like she had a good chance of winning, I might not run.  That would be because then it would be a more contested race… and the problem is, I don’t know who that woman would be, but if there was someone there, then I think it would be a legitimate issue and I’d have to take a look at it.

OK, time for some more speculation... I'm guessing that what he is saying here is that in a two-person race against Hallman, he feels confident that he can do well.  But if a third person entered, she might split up the vote, possibly taking more votes from him than from Hallman and handing Hallman the election.  So, if the unknown potential woman candidate would be better for Oregon than Hallman, it might make sense for him back out and support her.  I don't know.  But it makes sense.

So getting right to the meat of it, I asked Jack the "why you, why now?" question:

Jack:

The main reason I’m interested in running is that there is a real disconnect between the Supreme Court and the people of Oregon.  We elect our judges for a reason: we don’t expect them to be political in their decisions, but we expect them to know who they work for, and to be able to communicate what they do to the people, and to connect to the people.  It helps to have on the bench a diversity of people from different backgrounds and experience.  Right now, we don’t really have that.

When Chief Justice Carson retires, of the six remaining justices, five came up from the Oregon Court of Appeals.  The other one was a deputy AG under Kulongoski.  There’s not the kind of broader experience or involvement with the economy, with the workplace, with the public, that comes from having to run for offices and interact with people.

There used to be a real history of people from elected office getting to the bench: Betty Roberts, Ted Kulongoski... and Wally Carson was a state representative and senator.  With Carson leaving, we are going to lose that.  And it reminds me of the story that people used to tell when L.B.J. was elected Vice President... He said the Speaker of the House, “you wouldn’t believe how many people around here are from Harvard and Yale, you’ve never seen so many smart people in all your life,” and the Speaker looked at him skeptically and said, “that may be true, but I’d feel better if one of them had run for something like County Sherrif.”  I think the point he was making is that there is this contact with the average person that you need to have, dealing with people’s problems, and how to help them on an individual level, that you need to have in all levels of government.  And I think that helps on the Supreme Court.

I think that having someone like me, who has practiced law for 10 years (but I wasn’t really a trial lawyer; my job was to keep people out of court, to help them do their job, do their business, without going into court); being a County Commissioner, where we dealt with land-use issues at the nuts and bolts level: where you have one neighbor complaining about what they want to do with their property, and another neighbor complaining about how that’s going to impact their property, and you have to help them work things out; and being a Labor Commissioner, where my job was to help enforce labor laws, civil rights laws, wage laws, and to do it in a way that protects the rights of the workers but still allows you to have a productive work place and keep people working… and not to mention being a County Commissioner and having to deal with “how do we pay for the DA” and “how do we pay for our jails,” where we are under a federal decree over overcrowding, where we matrix out criminals when the jail gets too full, and knowing what that means to people feeling safe and secure in their homes, and that matters in our judicial system, that you’re not making decisions in an ivory tower... I think having at least one member of the court who has that experience is important.

And that brings up some of the things that I think ought to be revisted.  Now, I can’t say in advance how I would rule on these things, because you need to hear the arguments, read the briefs, and all that.  But the recent case on live sex acts reminds us that there is a whole line of cases, going back to State v. Robertson, which Justice Gillette talked about in his decision, that I think… along the whole line of history, and the analysis that he used in his decision, there are a lot of points that I think have room for a lot of debate and discussion, and I’d like to be a part of that.  I think that we have to be able to formulate a rule of law that most people in this state can understand and accept, and I don’t think we’re there as it relates to free speech… even though I think Oregonians broadly support free speech; in fact, in 1996, there was a ballot measure that would have said “do you want the Oregon free speech provision to be interpreted the same way as the federal free speech provision,” and it lost.  People understand that we have broader protection here and they wanted that.  But I still think you ought to have a rule that is understandable and can be communicated to people, and I don’t think the current rule that we have makes sense.  We need to have that discussion.

I also think that the search and seizure provisions of the Oregon Constitution need to be revisited, because the language of Article 1, § 9 of the Oregon Constitution is virtually identical to the Fourth Amendment of the U.S. Constitution, and yet we have interpreted that and applied that very differently.  I think we need to go back and look at that, what is different and unique about Oregon.  When we have cases like we have had out of our Supreme Court, where someone is standing next to a backpack, a police officer asks “is this your backpack?” and the person says no, and they search it and find drugs, which they are able to convince a jury belongs to this guy, and he is claiming that was an unlawful search of his backpack—he now admits it was his backpack—because at the time he denied it was his, you have to go back and ask if the rules as we are interpreting them make sense.  Are they really connected to the Constitution as it was originally written and as it has evolved through time?

So there are plenty of issues where we need to take a fresh look, and not just say we are going to come up through the system and accept all the precedents and past history as a given, without asking the question “is this really doing the job that the people of Oregon want and expect as required by our Constitution?”

So the more I look at this, the more interested I am; I’ve not made a final decision as to whether or not I am going to run.  This would be a major career change for me if I’m successful!  But the more I look at it, the more interested I am in doing this.

Jack Roberts recognizes that we do have some legitimate issues with the way the current Supreme Court has been interpreting our laws and our Constitution.  But would he be able to do anything about it?

Gullyborg:

As far as the possibility of implementing change, if you are elected, you’ll be one voice out of seven…

Jack:

Well, look at the decision the other day about the school district: that was a 4-3 decision.  It’s true that Chief Justice Carson was one of the three, so replacing him with someone who might feel the same way wouldn’t necessarily change the result.  But at least it wouldn’t be 5-2.  And there would be another voice there to make the case that state and local governments need to have more control over their budgets than what the Supreme Court is giving them.

On the live sex acts case, it was 5-1.  But Justice Kistler recused himself because he wrote the opinion in the Court of Appeals case which had upheld those laws.  So it probably is more like 5-2.  Justice Carson was in the majority on that one.  If I were on the court and could have an influence, it could change that to 4-3.  Then we are in the realm where one of the justices, with a different background and a different opinion, might be able to change things.

The court went through a period where they had a lot of unanimous decisions.  This court has, until recently, not had a lot of dissenting opinions.  But now we are starting to see more 5-2 and some 4-3 cases.  And I think things could change if we had people who were willing to stand up and say “we could think about this in a different way.”  And I there are ways to do that with even one voice.

Gullyborg:

How much power do you think there is in a dissenting opinion?

Jack:

Historically, there is a lot, if it is well argued, because it remains in the record.  There have been a lot of cases in the Supreme Court and the U.S. Supreme Court, where people have looked back and said “I now see that this argument has merit, and I’m going to build on that merit,” to where it can become a majority opinion.  Justice Hans Linde, when he was on the court, had a lot of influence with that.  And even a concurring opinion as to how you have a different way to reach a result, that can have some impact.  And if I didn’t think that, I probably wouldn’t have as much interest in running for this.

On to the subject of judicial neutrality...

Gullyborg:

Of course, there are some topics you would like to avoid discussing, in case you have to hear a case on that subject.  With most people seeking a position on the Supreme Court, having previously been an appellate court judge, they have a long history of maintaining that neutrality.  You’re different: because you’ve been a partisan politician and you’ve taken positions, and run on platforms, people know your position.  You’re pro-choice, for instance.  People who are strongly pro-life might take objection to that, might oppose you.  How do you overcome that?

Jack:

That is part of the problem with having a record on policy opinions; people might fear that I would vote on the court in a way that promotes my policy choices.  But I don’t think that’s what a judge’s job is.  I am a real believer in constitutionality, in judicial restraint.  Or, more to the point, I am against judicial activism.  I think a judicial activist is someone who, on either the left or the right, substitutes his or her personal policy opinions for those of the legislative or executive branches, without a foundation in law.

That really started at the national level from the conservative side nearly a hundred years ago, when judges were striking down laws passed in the Teddy Roosevelt administration and later in F.D.R.’s administration.  The move for judicial restraint then came from the left.  Since the Warren Court days, where judicial activism has been expanding the power of government in some areas, and restricting power in others such as law enforcement, now I think there is a feeling that it’s the left which is substituting its policy for enacted law.

Now… I don’t know, for example, if Roe v. Wade were overturned at the federal level, if someone came into our court and asked “what does the Oregon constitution say about abortion?”  I don’t know what the arguments would be.  The fact that I personally would support a pro-choice legislation doesn’t mean that I would find in the Constitution a right to abortion.  And that’s what I think people really need to look at, is “what is your judicial philosophy?” and not “what is your stand on political issues?”

Now, having said that… Betty Roberts (no relation) was on the Supreme Court.  She was a legislator who had run for Governor, run for U.S. Senate.  Once on the bench, she was seen in a different light.  So I don’t think I’m unique in that regard.  It all comes down to whether or not people can trust you to be fair.  Now, two examples of that…

In the year 2000, that was the last time the OCA had one of their ballot measures on the ballot.  And I’d always fought with the OCA on a lot of their things and opposed their ballot measures and not supported what they had done.  But when they had this measure on the ballot, and the opponents and proponents had to agree on someone to be the neutral party for the ballot measure explanation, they agreed on me.  The OCA said “Jack has never been with us, but he’s always been fair,” and they wanted someone fair.  Same thing happened last time on Measure 37.  I was asked by Oregonians in Action, even though I had opposed Measure 7, and had not taken a position on Measure 37.  But the proponents and opponents both agreed to ask me to be the neutral party on that one as well, because they both trust me to be fair.  That’s why I’m encouraged: a lot of people who didn’t support me or my positions before think I’d be good at this job.

Gullyborg:

As far as qualifications for the Supreme Court: you’ve said you’re not the typical candidate.  Now, I think you’re a great guy and I support you.  But how do you sell yourself as eminently qualified to serve on the Supreme Court?

Jack:

Well, that’s an excellent question because my background is different.  But I think that’s an advantage, not a disadvantage, and I’ll have to make that case.  First of all, I have a law degree, a J.D., from the University of Oregon, and I have an LL.M. in tax law from NYU.  Now tax law isn’t something people think comes up a lot at the Oregon Supreme Court.  But we do have tax and other economic and regulatory issues come up, and these are issues some of the people on the Oregon Supreme Court don’t have a lot of experience with.  I’ve had experience with labor law as the Labor Commissioner.  I’ve dealt with land use law in the position of County Commissioner.  And those are also issues where a lot of the people in the Oregon courts don’t have the same kind of experience, and in many cases not much experience at all.

We tend to think of the law as involving lawsuits.  But to a great extent, what the Supreme Court does is lay down the broader interpretation of the law that everyone has to comply with.  I would say that when I writing rules at the Bureau of Labor and Industries, trying to enact changes in the case law as well as new legislation, I was seeing those, trying to understand them, from a different perspective than most judges do, or most legal practitioners do.  The judge typically looks at it after the fact as “here is the law, did you comply with it or not?” The lawyer who is representing someone either looks at it as “here is how you stay out of trouble,” or “this is what you’ve got to do now to get out of trouble.”  What I was trying to do was decide “how do we make these laws?”  How do we make and enforce them, describe them to people and give them rules and guidelines, to enable them to comply with the laws, which is the only way to meet the economic or social or equity values that are expressed… How do we do that in a way that is clear, understandable, and doesn’t get in the way of what people do with their lives.  It’s a different perspective.  Then, turning it around to the other side, how should we now pronounce the law from the bench, where you are the final word in the State of Oregon on that?  I think that perspective, as one of the seven members on the court, would be very valuable.

One of things on the campaign that I think is very important is that I’m not running to be THE Supreme Court.  I’m running to be A JUSTICE on the Supreme Court.  Out of a team of seven justices, shouldn’t you have at least one person who has that perspective?

Gullyborg:

Hearing your answer, it sounds like you might subscribe to the philosophies of Judge Richard Posner?

Jack:

I like a lot of his work.  But he goes a little too far, a little too rigid.  I think that form of analysis is one important component of what you do.  But I don’t think you can reduce any form of legal analysis into a mathematical formula.  My sense is that he likes to do that.  I find the whole law and economic school to be, not revolutionary, but certainly enlightening.  It continues to provide a lot of benefit.  I don’t think that by itself, though, can determine jurisprudence.  I have a lot of respect for him.  He’s a great writer.  His insights into the law are very valuable.  But I wouldn’t call myself a Posner disciple.

Gullyborg:

When it comes to deciding a case: it’s possible that you may have a situation where the facts are such that, if you rule one way, it may make sense from a purely legal standpoint, but if you rule the other way, it may provide the most equitable justice to all parties.  How do you resolve a case like this?

Jack:

Well, the job really is to enforce and interpret the law.  However tempted you might be to bend the law to do justice in a particular case, the precedent you will set by doing that can result in real injustice in a lot of other cases.  Now, by the same token, there is often a lot of discretion in the law, judgment in the law, and I’ve never believed that you decide cases based on ironclad formulas.  The good justices over the years, people like Justice Holmes, Justice Cardozo, Judge Learned Hand, these are people who, I think, had a realistic view of how to take the law, and apply it in a way that makes sense.

I think that if you’re a judge, and you’re not prepared to make a decision that you don’t agree with from a policy standpoint but you know is right in a legal sense, you shouldn’t be a judge.  But by the same token, if your judicial philosophy results in a crazy decision, one that doesn’t make any sense to any parties, but you say “this is how my judicial formula applies,” which is what I think sometimes with Posner, then you have to step back and re-evaluate, and say “how can I say this is right if the outcome is so crazy?”  I’m going to resist the temptation to name some recent cases where I think this has happenend…

I think you need some grounding in good common sense, in real life, in the real world.  But you can’t be twisting the law in every case to do what you want it to do and call that being a judge.  That’s not the job of a judge.

Gullyborg:

Looking at the Harriet Miers situation: I’m sure you’ve noticed there is a lot of discontent going back and forth on the right.  Some people are talking about her education credentials: why is somebody from S.M.U. going to be on the Supreme Court and not somebody from Harvard or Yale… When it comes to state Supreme Courts, do you think having an education from one of the big state schools is possibly more valuable than an education from an out of state “elitle” school that might not have as strong a focus on the state’s law?

Jack:

I don’t know that it matters a lot.  I suppose there are a number of people on our courts who went to prestigious schools, but many others did not.  I think Justice Riggs is the only sitting Supreme Court Justice with a law degree from the University of Oregon.  Carson was from Willamette.  I don’t think it matters too much where you went to school to get your degree.  I think that’s a bum rap for Harriet Miers.  There’s still a lot of questions and we don’t know how she’s going to come out of this thing.  I’ve been sort of offended by the snob factor and what’s been said about her.  I think it would be fair to say she deserves a lot more scrutiny than someone who has more of a record.  But trying to prejudge her based on the fact that she went to S.M.U. and that she was chair of a lottery commission in Texas… for all I know, that may have been a better life experience than what a lot of other people might have done.  I find myself defending her even though I don’t know much about her and, for all I know, she might end up not being a very good candidate.  As of right now, I think people ought to give her a chance, at least to see how she does before the Senate.  I hope in the campaign people will give me a chance.  I don’t apologize at all for going to the University of Oregon.  I think it’s a good school.

Gullyborg:

In mentioning several recent decisions by the Oregon Supreme Court, you’ve shown that you stay abreast of the cases.  How do you keep up to date on Oregon and federal Constitutional Law in the job you do now?

Jack:

In doing economic development, it’s affected by developments in the law.  Even though I don’t currently practice law, I am affected by rulings that come down both at the state level and the federal level.  The decision in Kelo v. New London, dealing with condemnation for economic development purposes, obviously is something we are watching very closely to see what happens at the state level.  What’s interesting is that we have a comparable provision in the Oregon Constitution that talks about public use, and given the tendency of our courts to take a different view of the state Constitution from the federal, we don’t know how the case would have come out in Oregon.  So those are the kinds of things I try to stay up on.

Fortunately now, with the internet, it’s gotten easier to keep up with.  It used to be I had to subscribe to advance sheets and find things out late.  Now you can read the opinions the same day they come out, so I try to stay up on them that way.

If Jack has one weakness in his bid for the Supreme Court, it is his lack of trial experience.  But is it really a weakness?

Gullyborg:

How do you counter the arguments against you for your lack of courtroom experience?

Jack:

Again, my feeling is that if you were going to pick one person to be the judge of the entire state, you’d want someone who had different skill sets from what I’ve got.  But then, we have plenty of people on the Supreme Court and the Court of Appeals who have spent their whole life in the legal profession.  And the law doesn’t just belong to the lawyers; it doesn’t just belong to the legal profession; the law belongs to the people of Oregon.  That’s why we don’t have the bar elect the judges; we have voters elect the judges.

I think that someone who has served in the offices that I have… It’s interesting: most of the politicians who later get to the bench come out of the legislature.  But in a sense, a County Commissioner’s job is closer to judicial responsibility.  And as Labor Commissioner, I used to issue final orders in administrative cases.  I acted as a judge writing the opinion.  I did that for years.  I think that my range of experience, in many respects, stacks up well against the others.

I think Jack makes an excellent case for adding in some new diversity to the Supreme Court in terms of legal work experience.  To drive the point home: the Supreme Court has seven seats.  No one person can have all the answers to the assortment of legal questions that come before the court.  So it makes sense to put together a court of diverse background, to improve the chances that at least someone on the court has dealt with any given issue to come before it.

Jack Roberts would certainly bring in new expertise as far as labor, land use, tax, and other economic matters.  But can he bring in anything as far as other areas of law?

Gullyborg:

What do you think about the criminal law system?

Jack:

Well, I’m a big supporter of it!  But, I think that we have a real problem in this state.  We’ve seen our person-crime drop significantly since Measure 11 was passed, but our property-crime is among the worst in the nation.  We need to get a handle on that.  There are a number of things I think that, as judges, we need to be concerned about.

Part of it is that the right to a speedy trial has to include some sense of timeliness on the courts, including the appellate courts.  The Harberts decision which came down a few years ago, that was the case of a convicted baby killer who was sentenced to death, and his conviction was overturned because the DA took 5 years to bring him to trial.  But 4 of those years was spent waiting for the Court of Appeals and the Supreme Court to decide an evidentiary issue.  There was a confession they wanted to introduce.  So it took them four years trying to get that introduced, and they ultimately lost.  But then they tried him, and convicted him even without the statement.  But then the court said that they took too long.

If we’re going to get people a speedy trial, we also have to expedite the processing of some of these appeals.  Unlike the defense, the prosecution doesn’t have the luxury of trying it one way, and if that doesn’t work, going back and trying another way.  You get one bite at the apple.  If we’re going to have fairly restrictive rules about what gets admitted, we ought to at least get fairly quick rulings on that so that the people can get brought to trial in a reasonable way.

There are a number of things we need to look at.  The public needs to know that we aren’t trying to railroad anybody, that we are giving a fair trial.  But the law abiding public and the victims of crime need to know that we are going to get the job done.

Gullyborg:

What is the current state of the death penalty in Oregon?

Jack:

We have a death penalty in Oregon.  We have executed two people.  Both of them said they wanted to drop all appeals and get it over with.  We’re the assisted suicide state, and we haven’t even executed anybody who didn’t want to be executed.

Gullyborg:

When was the last execution?

Jack:

I don’t know.  It was years ago.  I’m not sure which year it was.  We don’t execute very many people.  Personally, I’ve always supported the death penalty.  I think in some cases it’s appropriate.  But it’s also necessary that you have safeguards so you don’t execute innocent people.  That’s irreversible error.  That isn’t the area I would concentrate on.  I don’t think we need to change that.  But I’m not one of those people who would have moral qualms about executing someone who has been found guilty.  I’m not going to be reluctant about that.

Gullyborg:

So if a death penalty case comes before the Supreme Court, and it’s 3 against and 3 for, and the six of them are all looking at you, you aren’t going to have a problem deciding whether someone lives or dies?

Jack:

I’m not going to make arguments for or against the death penalty.  I’m just going to want to be sure I’m on the right side of the law.  I don’t think of it in terms of life or death.  I think in terms of the law, and in terms of the cases I have seen on the death penalty.  If I am convinced of the person’s guilt, I have no problem saying the person should pay for it with his life.

Gullyborg:

What do you think about the discretion of judges in criminal sentencing?

Jack:

Well, you know, that’s an interesting one.  I think there are distinct advantages to having strict sentencing guidelines that are certain and that people know they will have.  I’m concerned about what’s happening now with the U.S. Supreme Court, with Blakely v. Washington, where the ability of a judge to depart upwards from a sentence, to make it tougher, taking into consideration facts that haven’t been found by the jury, has forced the Court of Appeals in decisions today, a whole rash of them, to overturn sentences.  I think it’s interesting that this was Scalia and Thomas siding with Stevens and Ginsburg, where the polar opposites agreed, and the ones in the middle, O’Connor and those guys, saying “what a minute, you’re taking away the discretion of the judge.”  In this case, it was discretion to go up.  I think there is something to be said for the judge, who is there hearing the case, to have some discretion.

But I also think having mandatory sentencing has proven to be a real boon, giving a clear signal from the people that we’re fed up and not going to take the levels of criminality that we’ve had.  I think it has contributed to the reduction in person-crimes.  Now we need to see how to handle that with property-crimes given the resources we have, in terms of prisons and such.  That’s something the legislature will have to deal with.  So I like the mandatory sentencing, but judges need to have the discretion to go upwards, for the really heinous cases.  I think the public’s lack of confidence in judges led to the mandatory sentencing, and that is something we need to be conscious about.

I like the way Jack talks about criminal law, especially since, in his own legal practice, criminal law wasn't something he focused on.  I'm impressed that he's been keeping up on Supreme Court jurisprudence, like the Blakely case.  It shows that he's more of a complete lawyer than people might think.

Getting back to the campagn itself...

Gullyborg:

You said you wanted to run a very traditional campaign.  Obviously, there are some differences between a campaign for the courts and a campaign for other elective office.  There are differences in the campaign laws, and matters of legal and judicial ethics.  What is the biggest difference?

Jack:

The best thing about it is you can’t ask anyone for money if you are running for judge.  I don’t know any politician who likes that part of the campaign.  Under the canons of judicial conduct, you can’t ask for money.  You can have a committee that raises money on your behalf, but as I read it, you can’t even send people thank you notes for giving, because you aren’t supposed to know who gave and who didn’t give.

Gullyborg:

Do you have a fundraising team?

Jack:

No, I don’t yet.  That’s something we’ll have to do when—if—I do go forward with this.  I’ve already talked to some people who have done judicial fundraising, so I’ll probably tap into that.  They know the rules.

Gullyborg:

So, once fundraising does begin, how will people be able to find out about the campaign fundraising for Jack?

Jack:

(laughing) I don’t know; I’m not supposed to know!  That’s one of the things that I guess will have to be worked out: how do you go out and do this?  A lot of it traditionally has been lawyers, people who care about this, unions, business, other interest groups, they’ll raise money.  I guess that’s something I’ll have to learn about, figure out, and get people I trust to do that, according to the rules.  They’ll do that; I really have to separate myself from that.

Gullyborg:

What about advertising?

Jack:

My understanding is that you can do advertising just like any other campaign.  But I haven’t seen many ads in judicial campaigns over the years.  Endorsements are a big thing.  People depend on endorsements.  Usually they’re low key races.  This one has the potential to be more high profile than others.  But then, it also may not be.  With a governor’s race with contested primaries on both sides, that might grab all the attention.

Gullyborg:

How important do you think name recognition is?

Jack:

Name recognition is important, but it’s sometimes overrated.  Just because I’ve heard your name before, doesn’t mean I’m going to vote for you.  The question is: I’ve heard of that guy, he’s okay; or, I’ve heard of that guy, he’s a jerk.  That makes a difference.  The question then is not just name recognition, but do people associate you with the kind of qualities they want to see in the office involved.

Gullyborg:

How about the internet?

Jack:

Well, (laughing) we’re going to test that out real soon, aren’t we? I think the internet is a growing source of information for a lot of people.  In my last campaign, running for governor, the sense was that the internet was primarily a way to communicate with your campaign workers: it was a good source of information for people looking to see “where am I supposed to be?” or “what am I supposed to do?”  It was like a campaign bulletin board.  I think that is changing, as we are seeing more and more people visiting blogs and doing all that.

The fact is that it is becoming more and more a source of general public information.  That fact that I am running was first announced on a blog.  And that’s how newspapers picked it up and inspired them to do stories about it.  That would never have happened four years ago.  Even if it had been out there, no one would have seen it.  And if someone had seen it, no one would give it any credibility because it was just the internet.  Today, what’s on the internet is taken more seriously.

So I think it’s a way to get information out and it’s only going to get more important.  And I think it’s a good source of information.  Some people complain there’s no real vetting of information, no one goes through and validates it.  But, in another sense, I think people have a more honest approach to information there because they know no one’s vouching for it.  It’s here’s the information, here’s what I’m hearing, judge for yourself the information, judge for yourself the credibility.  It’s the same cynicism we should have been bringing to newspapers and tv, and for too long, didn’t.  People tended to believe, I saw it in the newspaper, I saw it on tv, it must be true.  Human fallibility, among other things, meant it often wasn’t true.

I’m a big fan of the internet.  I’m a big fan of the information out there.  But buyer beware!

Gullyborg:

So, apparently, you have a connection to the NWRepublican website.  They broke the news on your running, and I’ve seen you commenting there.  Any other websites that you enjoy (mine excluded)?

Jack:

The interesting thing is, I do know the author of the NWRepublican blog, but I didn’t tell him I was running.  I told somebody else, who told him, and that’s how he got it.  I didn’t even see it; someone told me they read it.  Recently, to keep up with the other side, I’ve been reading Blue Oregon.  The one I’ve been reading longest is Jack Bog’s Blog.  Jack Bogdanski is a tax law professor and was a tax law practitioner and I’ve known him for a long time.

Gullyborg:

Are you friends with him?

Jack:

Yeah, sort of.  Not close personal friends, but we’ve been acquainted for a long time.  I had lost track of him, but then he actually said something good about me in the governor’s race on his blog and I found it while Googling.  So I thanked him, even though by then I had already lost.  So we reconnected and now I occasionally write things at his blog.  It can be a dangerous habit!

First of all, I always use my own name, and never use any other name.  It’s not that I feel there’s anything wrong with it, and there are certainly good reasons why a person would want to remain anonymous or have a handle.  In my case, I didn’t want anyone speculating “is that Jack Roberts” or thinking I’m trying to pass myself off as something that I’m not.  So early on, I decided that anything where you sign up, I’ll sign up in my name.  But it’s very seductive to sit down and rip something off without thinking too much about it.  If I get into this campaign, I may have to stop that.  And if I become a Supreme Court justice, I may never be able to do that again.  (laughing) Maybe that would be a time to invent a handle!

But I like the opportunity to exchange ideas with people.  It’s different from sitting across from people and talking: if I was talking and threw out a crazy idea, I could just say “well, that was a crazy idea” and forget about it.  But you don’t have that option on a blog: once you post a comment, it’s out there.  And if you post something crazy it can haunt you for the rest of your career.

I couldn't pass up this opportunity to push something I've been saying here for some time...

Gullyborg:

Speaking of crazy ideas, here’s a crazy idea to throw out there: do you think that it might be beneficial for the people of Oregon if Kevin Mannix were to switch races?

Jack:

(heavy laughs) Yes, I’ve read about that on your website!  You know, it’s Kevin’s decision what he’s going to run for.  And if I get into this race, I’ll have to avoid getting involved in other races.  But as you know, I do support Kevin in his race for governor.  And I understand the people who support Jason.  I like Jason.  I hope this is a positive thing for him.  Maybe he can pull it off.  But I’ve also seen people run prematurely and go down in flames.  I hope he doesn’t do that.  I like him.  I think he’s got the right temperament, so I think whatever happens, he’ll survive it.  And even Ron Saxton: I’ve known Ron for a long time and we’ve had our differences… but those guys can have at it and do what they want to.  But Kevin, I tried to get Kevin to drop out of the governor’s race and run for the Supreme Court four years ago (laughs).  Of course, he knew where that was coming from, so he didn’t take that too seriously.

The other problem would be that it is very tough to beat an incumbent judge.  So even though I think that would be interesting, I don’t think that something he’s likely to do.  I don’t see that happening.  But I don’t blame you for trying.

Hey, I had to try!

One big thing I was curious about: if elected to the Supreme Court, would Jack pull a Kulongoski?

Gullyborg:

Looking at the long term picture: You’re still a young guy…

Jack:

I don’t know… 53…

Gullyborg:

That’s still fairly young as political figures, especially judges, go.  If you go to the Supreme Court and serve a six year term, you’ll still be under 60.  Would you use the Supreme Court as a spring board for something else?

Jack:

I don’t think the Supreme Court is a good springboard.  Kulongoski is, I think, the only person to use it to move up to Governor or anything like that.  No… I think if you go back to Charles McNary, going back before the World Wars, he was on the Supreme Court at a very young age, then became a U.S. Senator, and was a vice-presidential candidate in 1940.  That’s the only other Oregonian I can think of who had a significant political life after the Supreme Court.  I think once you are in a judicial position, it’s very hard to get out.  I see this as a permanent career move; that’s one of the things I’m weighing.

Gullyborg:

If we continue to have Republicans in the White House, this could be a step towards the 9th Circuit Court of Appeals...

Jack:

(heavy laughs) Boy, now you are moving forward!  I think that’s highly unlikely.  First issue is, are we going to have a 9th circuit?  I talked to Greg Walden last week, and the issue of the split came up.  He said they are really adamant, the House Republicans anyway, that they aren’t going to support any new federal judges until the 9th circuit is split.  And since other parts of the country desperately need new judges, that might ultimately give them the leverage they need.  The Senate has been holding it up—and that’s true of a lot of things—but if they need something, namely more judges, and it gets to be important enough, it may happen.

But also… on the Oregon Supreme Court, you’re one of only seven people with the final word on Oregon.  I realize there is great prestige with being on the Circuit Court and all, but I think I could do more for Oregon on the Supreme Court than I could in the federal system.

Besides, if I did decide I was interested in that, there would be too many people waiting in line ahead of me.

By this time, it was getting late.  I wanted to get one good, final line from Jack regarding this campaign.

Gullyborg:

In one sentence, why does the Supreme Court of Oregon need Jack Roberts?

Jack:

To bring common sense back to the court.

Gullyborg:

Are you saying there isn't any common sense on the court?

Jack:

Let’s just say they can always use more.

Well, there you have it.  I think he's right: we do need more common sense in the courts.  I think Jack Roberts might be the man to bring it.

Comments

[Tony]

Gully,

Excellent interview with a great candidate! I will post this with pride.

[Daniel Miglavs]

The most important comment in the whole thing:

"I’m just going to want to be sure I’m on the right side of the law."

A strict constructionist is just what our court (and any court) needs. Thanks for the great interview Gully!

[a Jack supporter]

I think we need Jack if, for no other reason, because Measure 37 will go to the Supreme Court, probably shortly after the 2006 election.

And we need someone who will be able to articulate and communicate a sensible approach.

Compare the way Jack talks in this interview with the way a previous Supreme Court justice addresses the recent Measure 37 ruling:

http://www.larslarson.com/NorthwestHeadlines/118051.aspx

I read that, and read it again, and for the life of me, I have no idea what Sleepy Ted actually said about Measure 37.

What kind of leadership is that?

[Sailor Republica]

I will state that Jack is good and correct for the job as state Supreme Court justice.

However, his blatant whoring out to Kevin Mannix leaves a bad taste in my mouth.

[Ken]

Nice job, Gully. Now that I've read that, I don't think I want Mannix to run for judge; if he ran against Roberts, they'd split the vote and Hallman would scoot in. We need someone like Roberts on the court.

[Sailor Republica]

Ken, let me be the latest to say:

If Kevin was to run for Supreme Court, it wouldn't be against Hallman. The name we've come up with is a Judge Durham.

With Roberts going against Hallman, and Mannix going against Durham, it would be GREAT.

[Ken]

Thanks for setting me straight, Sailor. It would be a great double-shot (if we can talk Kevin into dropping out of the governor's race...)

[RomeoDelta]

Very nicely done, Gully. He'd certainly have my vote. During the governor's race, I had to side with Mannix (sorry Mr. Roberts!) due to moral differences with Jack. That being said, I have every confidence that Jack knows his personal convictions are trumped by the law and would make a helluva SC Justice.

[Jeff Merrick]

Jack's got a problem: he is not qualified to be an Oregon Supreme Court Justice. ORS 2.020 requires that a person be legally able to argue a case before the Supreme Court before s/he can serve a justice, which makes sense. Jack has not been qualified to pracitce law since 1996.

I understand he has applied to reactivate his license.

By contrast, Mr. Hallman has handled over 130 appeals, over 30 to the Oregon Supreme Court. He has tried over 300 cases.

The Supreme Court should not be about lawmaking and promoting your public policy views. The justices are there to make the system of justice work. One needs to be involved in the system to fully understand it.

[Sailor Republica]

>The justices are there to make the system of justice work.

Got a problem. IT DOESN'T!

[anonymous]

>The Supreme Court should not be about lawmaking and promoting your public policy views.

I don't think Roberts is interested in promoting policy views. Hallman, on the other hand, I fear would want to support a liberal pro-plaintiff anti-business agenda. Roberts has a history of neutrality, whereas Hallman is very much an advocate.

As long as Roberts is able to meet the qualifications before the election, it shouldn't matter. The position of Supreme Court Justice isn't about trying cases. That's what lawyers like Hallman are for. The position is to answer questions of law. Anyone who has passed the Oregon bar is qualified to that. The trick is to find someone who will do it consistently, without prejudice or bias.

And more importantly, where there is ambiguity in the law (if there wasn't, it wouldn't need to be decided by the Supreme Court), the court needs to look at what the legislation or the voters were trying to accomplish, and interpret the law narrowly so that the will of the people isn't thwarted by the whim of 7 men in black.

The recent Measure 37 ruling (which Jack Roberts was neutral on) is proof that we need neutral judges, not advocates like Hallman.

[Jeff Merrick]

We do need neutral judges.

But saying we want judges who don't practice law is like saying, "I don't want a practicing surgeon for a heart transplant, I want someone who just studies medicine."

Get real. Most of the work of the court is on issues that are mundane to most voters, but important to the system of justice. We need someone who is in the trenches and understands the real-world ramifications.

A guy who has not practiced law since 1989 (i.e. Jack Roberts) would not be a good choice.

And by the way, the Measure 37 judge was a business defense lawyer, not a lawyer who represented people against insurance companies a/k/a a "plaintiff's lawyer." Perhaps she was too neutral for you, despite her prior practice.

[Gullyborg]

Jeff,

If there were only one Supreme Court Justice, I would agree with you. And if Jack wanted to serve as a trial court judge where he alone would make decisions, I would agree with you.

But as Jack pointed out, he wants to be one member of a team of seven. And, compared to the other six members of the team, Jack does have more expertise on matters of tax law, land use law, and labor law.

He isn't looking to be the single voice of judgment on all matters of Oregon law. He is looking to be a part of a team where he can bring in new insights on complex issues.

I think he makes a strong case.

Also, I can't speak for "anonymous" and the Measure 37 judge. But that judge was a recent Kulongoski appointee. She is definitely a partisan player with close ties to the party in power. She wouldn't have been appointed otherwise. And considering that the Governor and many of the democrats in the legislature have been opposed to M37, there is certainly an appearance of impropriety.

[Gullyborg]

> But saying we want judges who don't practice law is like saying, "I don't want a practicing surgeon for a heart transplant, I want someone who just studies medicine."

Your analogy doesn't hold up: Jack IS a specialist, and the types of lawyers you seem to support are more like the generalists.

When you go to a hospital, you don't find a staff of doctors who all have experience in every field of medicine. You find a heart specialist, a cancer specialist, a trauma specialist, etc.

Jack is the economic law specialist. There are other people on the supreme court who can be the criminal law specialist, the separation of powers specialist, the torts specialists, etc.

[Gullyborg]

I did a little research to find out who this Jeff Merrick is... turns out he is:

1) An infamous trial lawyer in bed with the extremely liberal activist OTLA, and

2) A prominent liberal democrat activist with the Multnomah Democrats, and

3) Actively working to elect Gene Hallman.

here is is blog:

http://www.multdems.org/blog/52

Judge for yourself whenever you hear him comment on Jack Roberts.