Our courts tend to be afterthoughts in our politics and elections, barely considered compared to the higher-profile elected legislators.
Many voters in Oregon pick up their ballots and voter guides at election time, marching through their votes for offices like president, governor, senator and representative, but pause when they hit judges and justices up for election.
Many are unopposed: Should they simply check the box? If they’re opposed: Who to vote for? The campaigns are usually low-key and often the candidates say little that would help voters choose between their options.
But those options do matter, nationally and notably in Oregon, and the evidence is all over the headlines.
The most significant election of the year nationally may have been last month’s state Supreme Court contest in Wisconsin, unusual in the attention it has gotten, the money spent on it and the political impact it may have. But its political contours – a technically nonpartisan race between candidates openly supported by Democratic against Republican interests – are clear.
In Texas, a single federal judge, Matthew Kacsmaryk, has claimed the authority to pull a drug from use nationwide, which inserts him into the center of national politics while that claim is heavily disputed. Oregonians can find the impact of local judges closer to home.
Last year, on a close vote (50.6% approval), Oregon’s voters passed Measure 114, which provides for limits on gun sales, ownership and transfers and related activities. It was challenged swiftly in federal court in Portland, where the Oregon Firearms Federation and Sherman County Sheriff Brad Lohrey sued, arguing the measure violated the Second Amendment to the federal Constitution. On Feb. 20, a federal judge gave the measure a legal go-ahead with some delay so some provisions could be properly carried out.
The measure’s critics have not stopped there, however. Long before the federal judge ruled, on Dec. 2, the Gun Owners of America, the Gun Owners Foundation, Gliff Asmussen, and Joseph Arnold went to state court. They did not file in Portland or in Salem but in the state’s 24th judicial district, which covers Harney and Grant counties and has one elected judge, Robert S. Raschio. Three hours after the federal court ruling cleared a path for the measure, Raschio blocked it – statewide – at his court in Burns.
You didn’t have to read too carefully between the lines of the decision to find an attitude more attuned to Burns than to Portland. Raschio wrote in his Jan. 2 decision, “The court finds that there is less than a one in 1,000,000 chance of a person being a fatality in a mass shooting in Oregon. And even less with an offender who is using large capacity magazines.”
State attorneys have asked the state Supreme Court to intervene, but it has declined, so far. The measure has sat in the Burns courthouse for several months.
The latest effort to overcome the judicial blockade has been a measure in the Oregon Legislature, Senate Bill 348, now working its way through the Senate, which seeks to implement (with some adjustments) the terms of Measure 114. It also includes a striking additional provision: A requirement that any legal challenges to it would have to be run through courts at Marion County in Salem. (This isn’t the first time such a provision has been added to legislation.)
All of this should put to rest the mythology that judges simply and dispassionately apply the law to whatever is brought before them. In the case of Measure 114, one group of plaintiffs, dissatisfied with the results from one court, shopped the case around to another. Another interest, dissatisfied there, determined that the case must go to a third venue.
Courts are powerful. In Oregon appellate court decisions – properly decided or not – effectively have set state policy on issues from public employee retirements to campaign finance to the limits of free speech. And as the recent decisions from Harney County demonstrate, the Supreme Court isn’t the only one that matters.
But we know little about the judges or where they’re coming from. Rachio’s opinion seems to have adopted a number of broad arguments and language from gun rights advocates (somewhat like the federal judge in Amarillo, Texas, seems to have done in the case of the abortion pill). That suggests background steeped in particular social patterns of thought found outside of legal case books; possibly you could find something similar – though from a different perspective) in the case of judges based in Portland or Eugene.
This may be inevitable; whatever professional training we may have, we all bring some of our own social and experiential baggage to what we do.
But in the case of judges, it may mean we need to take a closer look – and inquire more closely when appointed or elected – so that we know what we’re getting. Because that will vary.