Bryan Fischer
May 28, 2007
Idaho Supreme Court Justice: Citizens too stupid to pick their own judges
By Bryan Fischer

According to Idaho Supreme Court Justice Linda Copple Trout, ordinary Idahoans "don't know how to make a choice on who would make a good judge." In essence, Justice Trout is saying that citizens are too stupid to pick their own judges. This is oddly insulting to voters, for if Trout is taken at her word, they didn't know what they were doing when they returned her to the bench four times.

Trout offered this elitist explanation for her decision to retire early, to avoid giving citizens the right to vote on her replacement. This is an astonishing admission of her part in a collaborative effort to effectively disenfranchise Idaho voters and do an end run around Idaho's constitution, which she swore to uphold and which says unmistakably, "The justices of the Supreme Court shall be elected by the electors of the state."

According to Randy Stapilus of the Ridenbaugh Press, since 1950 no less than 68 percent of Idaho Supreme Court justices initially reached the bench through appointment rather than election.

Ostensibly, Trout is retiring early because each judicial election has turned into a "popularity contest." But the selection of her replacement may be just that, with the process now in the hands of the appointed Idaho Judicial Council rather than the people. The edge is likely to go to candidates who have done their best to become well-liked members of the clubby judicial establishment.

Chief Justice Gerald Schroeder is also retiring early, apparently sharing Trout's disdain for the electoral process. When the IVA sent a questionnaire to all 19 candidates for his seat, not one came back.

This despite the fact that all 20 "agree/disagree" statements in the questionnaire were lifted virtually verbatim from the Idaho State Constitution. Thus the IVA was doing nothing more than asking these candidates whether they agreed with the very document they are prepared to take a solemn and sacred oath to uphold.

This means either that the candidates did not recognize the constitution when they saw it, or did recognize it but were unwilling to let the public know whether they agree with it.

For instance, we asked these candidates whether or not they agree with the proposition that all citizens have "an inalienable right to enjoy and defend both life and liberty." No answer. Do you agree that all citizens "have an inalienable right to acquire, possess, and protect property?" No answer. Do you agree that "all political power is inherent in the people?" No answer.

Do you agree that "the exercise and enjoyment of religious faith and worship should be forever guaranteed?" No answer.

Contrast this attitude with the six Pennsylvania judges who were so eager to give the public information about their judicial outlook that they recently sued and won for the right to fill out a questionnaire similar to ours.

Remarkably, the Idaho Statesman, Idaho's largest newspaper, clearly didn't recognize the state constitution either. The Statesman accused the IVA's questionnaire of being "heavy-handed" and nothing more than a "gimmick" "cynically" designed to "buttonhole the hopefuls on wedge issues such as gay marriage, eminent domain and gun ownership."

Well, if the Statesman's editors consider these "wedge issues," their problem is not with the IVA but with the Idaho State Constitution.

Current justice Dan Eismann filled out a much more extensive questionnaire than ours when he ran against an incumbent in 2000, while his opponent did not. The public so appreciated his candor and his convictions they elected him 59 percent to 41 percent. In other words, Idahoans do in fact know how to choose good judges. They just need adequate information.

Eismann's example shows that it is absurd for candidates to hide behind the conceit that it is inappropriate for potential judges to give the public information about their judicial philosophy because it might compromise future rulings.

Imagine league officials interviewing a prospective umpire. "Will you faithfully enforce the rules of baseball?" "Of course." "What about the 'three strikes and you're out' rule?" "Well, I can't comment on that because I might actually have to call a game someday." It's no less ridiculous when a prospective judge says he will uphold the whole constitution, but refuses to commit to upholding its parts. But in the judge's case, the stakes are far higher.

Perhaps the day will come when the information blackout that shrouds this process is lifted, but apparently with the Idaho Statesman reinforcing the cone of silence that day is not today.

© Bryan Fischer


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