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Gillette remained Solicitor General for four years, until 1977, when Governor Robert W. Straub appointed him to the Oregon Court of Appeals. He served there for nine years before Governor Victor G. Atiyeh appointed him to the Supreme Court. Having been appointed to court positions by both Republican and Democratic governors is a striking measure of the respect in which Gillette was held. For Gillette, being an appellate judge has brought all of the rewards he could have hoped for. He remains fascinated with the novel ways in which creative attorneys are able to frame new arguments from the same basic constitutional text. It’s a job, as he put it, that “never loses its charm or sense of challenge.” Working with other justices and his clerks also provides a uniquely satisfying intellectual environment. Over the years Gillette has witnessed enormous changes. The trial bench is, in Gillette’s view, far more professional and unified in its vision of the law than when he started on the Court of Appeals. At the same time, the reinstatement of the death penalty has put significant burdens on the court system that were not present before. As Gillette put it, the time and resources consumed by such cases at both the trial and appellate level has essentially “skewed” the entire judicial process. Regardless of one’s own individual opinion of the death penalty, its impact on the system cannot be ignored. In the courtroom, Justice Gillette has the reputation of being an aggressive questioner, but he firmly believes that lawyers make a mistake when they view his questions – or the questions of other judges – as hostile. “Most questions are neutral, if not helpful.” Gillette said. Ordinarily, they reflect the judge’s “attempt to synthesize the lawyer’s argument” and to draw out its logical consequences. Assuming the lawyer has thought things out, questions should provide a welcome opportunity to expand and explain the basic argument. Too often, however, attorneys assume that the questions are hostile and fail to take advantage of this opportunity. The qualities Justice Gillette most appreciates in an oral advocate are candor and preparation. “Lawyers who are able to say, ‘if that’s the law, I lose,’ really impress me,” Gillette said. He also appreciates lawyers who have thoroughly considered the consequences of their arguments and the questions that they are likely to be asked. More and more attorneys demonstrate this level of preparation, according to Gillette, in part because more attorneys today appear to practice their arguments with other lawyers before appearing in court. Nonetheless, there are always some exceptions. Gillette has been fortunate enough to meet one of the former Japanese internees who inspired him to go to law school. Gordon Hirabayashi, who resisted the government’s attempts to impose an 8 p.m. to 6 a.m. curfew on all Japanese-Americans living in certain areas and took his case to the US Supreme Court, is one of Gillette’s personal heroes. Gillette had the opportunity to meet Hirabayashi while participating in a PBS special on the internment of Japanese Americans and has remained friends with him ever since. All in all, Justice Gillette combines precisely the kind of devotion to the law, intellectual rigor, curiosity and human compassion that one would hope for in a Superior Court justice. Originally authored by Per Ramfjord and printed in the April 2004 Multnomah Lawyer.
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Justice W. Michael Gillette, Oregon Supreme Court