Undue Influence in Oregon

Part I: The Bully Who Was Almost A Judge

Last summer, Oregon Governor Kate Brown’s then-General Counsel, Misha Isaak, snatched a judge’s resignation letter out of his boss’s inbox and asked her to appoint him to the newly vacant seat.

Rather than publicize the Court of Appeals’ opening to other attorneys who might also be interested in the position, Isaak and Brown instead kept news of the vacancy quiet, scraped together some previous runners-up, and went through the motions of selecting Isaak from that limited “pool.”

The announcement of his promotion did not go over well.

It quickly led to a scandal that few could have foreseen, and highlighted shortcomings in Brown’s leadership: her cronyism, her irregular dedication to transparency, her ease in betraying allies, and even the shallowness of her agenda.

But the scandal also exposed the ugliness lurking beneath Isaak’s carefully curated public image, and may have even revealed a disconcerting plan regarding Oregon’s judiciary.

As soon as Brown announced that Isaak would fill the vacant appellate seat, Oregon’s legal community began to grouse: Isaak was too inexperienced and apparently not well-regarded enough to overcome the impropriety of Brown’s second furtive judicial appointment.

Amidst this grumbling, Ginger McCall, Oregon’s Public Record Advocate, suddenly dropped a bombshell: she would resign due to Isaak’s “abuse of authority,” political pressuring, questionable ethics, secrecy, and disrespectfulness — which she referred to as both “sexist and demeaning.” Perhaps most illuminating, she claimed that Isaak had criticized her as an outsider who didn’t “know about the politics or nuance of Oregon.” In short, McCall’s description of Isaak matched that of a bully protecting his well-established turf.

Isaak had also insisted that McCall reported to him. This was news to McCall — her understanding had been that the Public Records Advocate position was neutral and independent of the Isaak and the Governor’s office.

After initially calling McCall dishonest (through her spokesman), Brown did a 180 and demonstrated her lack of loyalty to Isaak, blaming him and another staffer for McCall’s resignation. Public records are a touchy issue in Oregon, and the state prides itself on its appearance of transparency. Isaak’s bullying of the records czar was not something with which Brown would want to be associated.¹

A week later, Isaak “declined” the judicial appointment in exactly the manner one would expect of an aggressor. Isaak shifted blame back onto McCall, denied her allegations, brayed that his reputation was “beyond ethical reproach,” and banged his fists, refusing “to accept further damage” to it.² Isaak also indicated that he had a lot of tea to spill on Brown and McCall if only he weren’t bound by pesky ethics rules.

Isaak’s Machiavellian response revealed that he was unsuitable for the bench. Judges should not be thin-skinned or unable to accept when they’ve made an error. Judges should not be bullies or prejudiced³ in any way. Most importantly, judges should uphold the rights of all who come before them — not have contempt for “outsiders” or be influenced by those who know the secret handshake.

As Isaak noisily withdrew from the judgeship, Brown announced that he would no longer be allowed to work on appellate court appointments — one of his previous key job functions. It was likely the first time that Isaak experienced such public consequences for his conduct.

Start to finish, the entire affair lasted eighteen days — a period of time so brief that it has to be spelled with letters rather than numbers.

It was easy to see then, as the dust settled, that a person like Misha Isaak — with his unconcealed appetite for advancement, and preoccupation with being the first, the youngest, the mostest — would not stay in the Governor’s office for much longer.

Predictably, Isaak gave Brown his resignation in February.⁴ In fact, Isaak’s last day of work was exactly six months after her brusque reproach of him. Six months was precisely long enough to dilute his public humiliation while simultaneously sending a commemorative “F-U” on the half-year anniversary of the scandal.⁵

Isaak has since returned to his previous employer, the respected firm Perkins and Coie. His biography there provides insight into what he clearly views as his greatest accomplishment while serving the Governor: that he “managed the appointment of a historic number of state judges, including majorities of the Oregon Supreme Court, Oregon Court of Appeals, and Multnomah County Circuit Court.”

Taken at face value, this is a metric that he would understandably put on his resume: over 50% of the judges in those specific courts were vetted by Misha Isaak.

But as someone who has had so much contact with judges and the judicial system, it could not have escaped Isaak that the word “majority” in this context normally refers to a bloc of judges who can be expected to make ideologically or politically consistent rulings. There is simply no other reason to refer to those judges, vis-à-vis their courts, as “majorities,” especially since the Court of Appeals and circuit courts, including Multnomah, do not even have en banc or jointly decided rulings.

It seems at though Isaak is marketing himself as an influential insider due to the many judicial appointees he elevated to the bench, and who ostensibly owe him favors.

Lastly — and most urgently in need of attention — is the question that naturally arises from Isaak’s flexing: Why has there been such an “historic” turnover of judges during Brown’s reign as Governor?

It’s a significant question but one that Isaak probably didn’t anticipate being asked. In fact, I almost didn’t think of it… an “historic number of state judges” is the kind of factoid that seems unequivocal enough to impress while remaining too uninteresting to challenge.

But in order to boast of such an “historic” achievement, you’d first have to establish how to quantify it. Does the number of days Brown served as governor divided by the number of judges she appointed equate to some sort of Judicial-Appointment-Rate? If so, how does it compare to other Governors’ JARs? Also, who did this massive amount of research and was it done during their lunch hours or was it done on the public payroll?

Setting that all aside, it is utterly implausible that someone in Brown’s office spontaneously or organically identified this historic JAR, or was enough of a JAR-wonk to notice that the number was creeping into record-shattering territory. Politely, no.

This leads one to believe that the appointment of an “historic number of state judges” was a very specific goal of Governor Brown’s, not an unexpected accomplishment; and that her office, including Misha Isaak, was oriented towards achieving that goal, one way or another.

Part II and beyond: Oregon Women Lawyers, the Commission on Judicial Fitness and Disability, head injury attorneys, Brown’s litmus test, and more.

¹ Two professional complaints about Isaak’s alleged misconduct were also filed with the Oregon State Bar.

² Regarding Isaak’s claim that his reputation is “beyond ethical reproach:” by definition, one’s reputation is something that other people decide, not you. Isaak may have meant to say that his behavior, ethics, etc. are beyond reproach. But what he literally said is that nobody can say anything bad about him — not that he isn’t bad.

³ Sexism is a type of prejudice, for example.

⁴ Isaak’s departure was announced in early-April, 2020.

⁵ Six months is precisely the amount of time that I would have waited.