We've said it before and we'll say it again: We think Ben Bloom should be retained as a Jackson County Circuit judge. But there's a point his opponent, David Orr, makes that we think bears more scrutiny from the legal profession following the election. It's not about Bloom, but rather about the system that looks the other way while lawyers help fund the campaigns of the very people they appear before on a regular basis.
Orr has made this issue a major part of his race — a race in which he is accepting no contributions from lawyers. He has at times turned it into an attack on Bloom, which is unfair because Bloom is following the same practice as virtually every judicial candidate across the state. It is a legal, and accepted, practice for judge candidates to accept campaign contributions from lawyers.
But should it be? That's a question we'd like to see the Oregon State Bar take up, even though we recognize the organization would have to walk a fine line to avoid impinging on free speech,
We think Bloom is an honest man and since being appointed to the bench has proven to have the right temperament and intellect for handling the often emotional and frequently complicated cases that come before him. So questioning lawyer contributions is not questioning him.
But we think there is validity to Orr's broader premise — that there are unmistakable ethical concerns in allowing judicial candidates to accept money from the very people whose cases they will be deciding. Certainly no judge worth his or her salt would base a ruling on the size of a donation from a lawyer handling a case, but anytime a judge rules in favor of a major donor, doesn't that at least raise the question?
Maybe we're naive, but we would assume that if a plaintiff or defendant were a major donor to a judge, the judge would offer to be recused from the case. If a judge has received contributions from dozens and dozens of lawyers in the community, however, recusal may not always be viable option, especially these days with the backlog that exists in the courts.
There are arguments to be made to the contrary. Wouldn't any prohibition be a violation of the lawyer's First Amendment rights? If lawyers are barred from donating, what about police officers or business people who may find themselves in courts regularly? And aren't lawyers perhaps the best judges of the judges, since they see them in action on a regular basis?
The first of those is the stickiest. Because the Bar is a regulatory body with certain powers given to it by the state, it would find itself facing its own lawyers in court if it tried to forbid judicial campaign contributions from lawyers. The Citizens United case threw the door wide open on allowing contributions, but even without that overreaching decision, it's hard to imagine the courts upholding a ban on donations by lawyers.
Lawyers already have the ability to weigh in on judicial races, through the Bar polls in which lawyers state their preference among candidates. Those Bar polls seem to carry a great deal of weight with voters, who recognize that the lawyers often do have an insider's view of the candidates.
Voters also recognize an ethical conflict when they see one, and it's hard to imagine how these contributions do not pose an ethical conflict.
It seems unlikely that the Bar could do anything beyond issuing a general statement encouraging lawyers to refrain from any visible involvement in judicial campaigns. At that point, it would be up to law firms and individual lawyers to police themselves. (It's worth noting that most news organizations, including this newspaper, have similar rules prohibiting political involvement or campaign contributions by their staff members.)
That's not a perfect solution by any means. For one thing, it leaves the door wide open to those who are less ethically inclined to continue donating and having a disproportionate impact on the outcome.
But being ethical often means you don't consider the outcome. It's not about winning or losing, it's about doing the right thing.
In a roundup on Sunday of our editorial endorsements, we inadvertently left out our support for Measure 15-115, which would build two new pools in Medford. One city pool is currently closed, while the other hopelessly outdated and dilapidated. We encourage Medford voters to make a needed investment in their community and vote yes on Measure 15-115.