Two weeks ago Oregonians who read the actual newspaper noticed the Oregonian's placement of two stories on judicial appointments. On one page was the story of Governor Kate Brown's appointment to fill an upcoming vacancy on the Oregon Court of Appeals. The story on the facing page reported President Trump's appointment of a county judge to the Ninth Circuit Court of Appeals, a federal court. Each story described the appointment process for that seat. (The Oregonian did arrange the stories along the political spectrum, with the Democratic governor's appointment on the left and the Republican president's on the right.)
One appointer convened a bipartisan committee of lawyers to interview and investigate prospective judges. The other appointer skipped the public process, skipped public input, and appointed a top aide. Who was which? Take a guess.
Wrong.
Oregon's senators (both Democrats) and Congressman Greg Walden (a Republican) have a bipartisan committee of Oregon lawyers who interview prospective federal judges from Oregon, talk with their references, read their opinions or other written work, and report on their reputation in the legal community. That committee recommended four persons as potential nominees, Senators Wyden and Merkley forwarded their names to the White House, and in due course the President nominated one of the four, Judge Danielle Hunsaker of the Washington County Circuit Court, to fill the vacancy.
Governor Brown skipped public process and appointed her general counsel, Misha Isaak, to fill the opening on the state Court of Appeals from Judge Erika Hadlock's unannounced retirement. In so doing the governor broke the unwritten agreement between the governor's office and the state judiciary. Her appointment of Mr. Isaak became a greater embarrassment when a few days after his appointment, it surfaced that he had pressured the state's public records advocate, Ginger McCall, who does not report to the Governor, to fall in line with the governor's views on limiting public access to state records. Governor Brown, not very convincingly (see previous link), has implied that Mr. Isaak wasn't representing her actual views on public records when he leaned on Ms. McCall. Ms. McCall resigned. The governor is thus in the difficult position of arguing that Mr. Isaak will be a capable and impartial judge while also asserting that he misrepresented her policy to the public records advocate. It's a difficult line for her to follow.
Unlike federal trial and appellate judges, who have lifetime appointments, Oregon trial judges are elected for six-year terms. They must retire in the year they turn 75. Every election includes judges who are near or past 65 who solemnly promise that if re-elected they will serve out their full term. Almost never will a lawyer run against an incumbent judge: once in office a state judge is nearly assured of serving until retirement.
Every year features judges who retire mid-term. (Judge Hadlock is retiring only 10 months into her current six-year term.) The unwritten agreement is that the judges will retire mid-term so that the governor can appoint their successors, in exchange for the governor's commitment to choose from among those lawyers who wish to be judges only the most capable and talented, giving any lawyer who wants to apply a chance to demonstrate her or his fitness for the job. The quiet arrangement guards against unqualified lawyers not vetted by the state and local bar associations ascending to the bench.
Governor Brown broke that bargain.
Her appointment of Mr. Isaak is the latest of Governor Brown's series of judicial missteps. In 2017 the governor appointed her then-general counsel, Benjamin Souede, to an open seat on the Multnomah County Circuit Court. (Judge Souede, who did face an election opponent in 2018, has since served with distinction.) Then on October 19, 2017 the governor appointed Fay Stetz-Waters, an Equity Associate at Oregon State University and former state hearings officer, to an open seat in Linn County, The governor and her staff had forgotten to check on Ms. Stetz-Waters' status with the bar first, and did not discover that she had placed her law license on inactive status, rendering her ineligible to serve until she reactivated it. (The state bar rushed her reactivation through, she regained active status in a few weeks, and the governor quietly reappointed her. She lost her election bid in 2018.)
If the state's judges agree that Governor Brown has broken the decades-old agreement between the executive and the judiciary, they should stop retiring mid-term while the present governor is in office. Alternatively, the governor's office should be honest and announce that she will solicit lawyers to apply for a judicial seat only if no one in her office wants the job.