Bryan Fischer
June 22, 2007
When judges think we're not smart enough to pick our own judges
By Bryan Fischer

I had a lengthy conversation yesterday with one of the 19 candidates for Chief Justice Gerald Schroeder's soon-to-be-vacant seat on the Idaho Supreme Court, a candidate who was not one of the four finalists sent to the governor by the Idaho Judicial Council.

Supreme Court judges in Idaho have taken in recent years to retiring early rather than serving out their final terms, so that their replacements can be chosen be appointment rather than by direct election, as our state constitution specifies. When a justice retires early, the Idaho Judicial Council, an appointed commission with no accountability to the voters, conducts screening interviews with all the candidates who apply, then picks two to four names to send on the governor, who then appoints someone from that list to Idaho's highest bench.

Since two of our five Justices are stepping down this summer, the attention of the Idaho public has been turned to the topic of judicial selection, and whether appointment or direct election is the better method.

My conversation with this candidate was revealing in a couple of ways.

First, the justification for appointing judges rather than electing them, we are told, is to "keep politics out" of the process. But this candidate told me that he knew his candidacy was doomed early in his interview because of the nature of the questions he was asked, which focused on specifically political matters. So much for keeping politics out of the process.

When I prepared the Idaho Values Alliance "Citizen Information" questionnaire, which we sent to all 19 candidates, I consulted with several members of Idaho's judicial establishment. All told me the same thing: I shouldn't expect to get any back, because returning the questionnaire would offend the members of the Idaho Judicial Council and doom their candidacies from the start.

The candidate to whom I spoke confirmed that his decision not to return the IVA questionnaire was made in part to avoid ticking off the IJC. So we have the sad spectacle of an appointed committee with no accountability to voters intimidating candidates for public office into keeping information about their judicial philosophy from the very public they are supposed to serve. Again, so much for keeping politics out of the process.

My good friend David Ripley has an excellent guest editorial in the June 22 edition of the Idaho Statesman, in which he correctly avers that Justice Linda Copple Trout's early retirement, done intentionally to keep the choice of her replacement out of the hands of voters, is an "imperious revision of the Idaho Constitution," and a "violation of (her) oath of office to defend our state constitution."

I had occasion this week to read the entire debate about the judicial selection process which took place during Idaho's constitutional convention in 1889.

Our state's founding fathers considered both the appointment model favored today by the elites in Idaho's judicial establishment and the direct election model.

After extensive debate, the direct election model was chosen and approved by an overwhelming 40-3 vote. In the three decades prior to Idaho's statehood, the framers of our state constitution had witnessed the appointment method at the federal level used to pack the United States Supreme Court for political purposes, indicating that no system is a perfect one and that, in reality, there is simply no way to insulate the process from political influences.

And of course they were right. Why should we think that an appointed committee is any more immune from political influences than the public?

Far better, our state's founders reasoned, to protect the power of the people to select their own judges. For, they argued, if the people cannot be considered competent to elect their own judges, why should they be considered competent to elect anyone else?

And so, from our very first day as a state, our constitution has always provided for the direct election of Supreme Court justices, and it is unconscionable for our state's leading jurists to engage in blatant judicial activism by deliberately circumventing a plain constitutional directive.

One of the excuses that candidates for Justice Schroeder's seat gave me in refusing to return the IVA's questionnaire is that they are prevented from doing so by Idaho's canons of judicial ethics.

However, as even ABC News acknowledges, in a story that features Justice's Trout early retirement, such restrictive judicial canons are unconstitutional. Says ABC, "Court candidates have also become far more outspoken about their personal beliefs in the last five years. This began when the U.S. Supreme Court, in Minnesota Republican Party vs. White, struck down a state law that prohibited judicial contenders from announcing their 'views on disputed legal or political issues.'"

Said James Bopp, the attorney who won the White case, "Voters need information on the judicial philosophy of the candidates. It takes campaigns and judicial free speech to ferret out judges that are prepared to legislate from the bench."

None of the 19 candidates for Justice Schroeder's seat deigned to return the IVA's questionnaire. Undeterred, the IVA will send a questionnaire out to every applicant for Justice Trout's seat, giving this fresh batch of candidates an opportunity to inform the public and the members of the Idaho Judicial Council about their judicial philosophy. Stay tuned.

© Bryan Fischer


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