Bryan Fischer
Justices circumvent constitution they swore to uphold
By Bryan Fischer
"The justices of the Supreme Court shall be elected by the electors of the state at large."— Idaho State Constitution.
It's hard to find a declaration in our state's supreme legal document that is less ambiguous than that one. It is the will of the people of Idaho — and has been since 1890 — that our Supreme Court justices be chosen by direct election.
Yet a disturbing trend has developed in which sitting Supreme Court jurists, who have taken a sacred oath to uphold the constitution, are deliberately circumventing it by retiring early just so the choice of their replacements can be taken out of the hands of the electorate and turned over to an appointed commission with no accountability to voters.
Both Justices Gerald Schroeder and Linda Copple Trout have acknowledged without apparent shame that they are stepping down because they do not trust the people of Idaho to make intelligent decisions in the matter.
But Idahoans are perfectly capable of choosing their own judges. They just need information, the kind that can be gleaned from non-partisan voter guides. (Although some candidates claim that judicial canons prohibit them from returning questionnaires, two federal courts have recently ruled that such restrictive canons are unconstitutional.)
By retiring early, Justices Schroeder and Trout substituted their own judgment for the clear meaning of the constitution. This is the very definition of judicial activism.
The president of our state bar recently argued against judicial elections because they "can threaten judicial independence." But Idahoans don't need "independent" judges; we need judges who bind themselves to the plain intent of the constitution and follow it regardless of their personal opinions or preferences. In other words, we need judges who recognize that their role is to apply the law, not make it.
As far as taking "politics" out of the equation, what reason do we have to think that an appointed committee is more insulated from political influences than the people are?
In the two decades prior to statehood, the Founders of Idaho had seen the appointment system at the federal level used to pack the U.S. Supreme Court for political purposes (one new justice had never even been a lawyer), and rejected appointment in favor of direct election by a 40-3 vote.
The federal appointment model has produced a disastrously activist judiciary, which has been systematically dismantling First Amendment religious liberties for over 40 years now. Unaccountable and unelected judges began to identify constitutional violations that had mysteriously escaped detection by the finest legal minds in America for more than 150 years.
A judiciary that is too "independent" soon floats off into the trackless ether of judicial unpredictability, untethered either to the Constitution or common sense, discovering "emanations" and "penumbras" that magically appear just when needed.
Because human beings are imperfect, there is no perfect way to select judges. To paraphrase, the direct election of Supreme Court justices is the worst method of judicial selection, except for all the others that have been tried. But the Idaho model at least reserves to the people the power to remove irresponsible judges.
If the legal establishment is unhappy with the direct election of judges, they should work to amend the constitution instead of ignoring it.
How will we know if our next two justices will honor the constitution? We ask them one question: Will you keep your solemn oath to uphold the constitution by serving out your final term so that the people of Idaho can choose your replacement?
For, if Idahoans aren't competent to elect their own judges, why should we consider them competent to elect anyone else?
© Bryan Fischer
"The justices of the Supreme Court shall be elected by the electors of the state at large."
It's hard to find a declaration in our state's supreme legal document that is less ambiguous than that one. It is the will of the people of Idaho — and has been since 1890 — that our Supreme Court justices be chosen by direct election.
Yet a disturbing trend has developed in which sitting Supreme Court jurists, who have taken a sacred oath to uphold the constitution, are deliberately circumventing it by retiring early just so the choice of their replacements can be taken out of the hands of the electorate and turned over to an appointed commission with no accountability to voters.
Both Justices Gerald Schroeder and Linda Copple Trout have acknowledged without apparent shame that they are stepping down because they do not trust the people of Idaho to make intelligent decisions in the matter.
But Idahoans are perfectly capable of choosing their own judges. They just need information, the kind that can be gleaned from non-partisan voter guides. (Although some candidates claim that judicial canons prohibit them from returning questionnaires, two federal courts have recently ruled that such restrictive canons are unconstitutional.)
By retiring early, Justices Schroeder and Trout substituted their own judgment for the clear meaning of the constitution. This is the very definition of judicial activism.
The president of our state bar recently argued against judicial elections because they "can threaten judicial independence." But Idahoans don't need "independent" judges; we need judges who bind themselves to the plain intent of the constitution and follow it regardless of their personal opinions or preferences. In other words, we need judges who recognize that their role is to apply the law, not make it.
As far as taking "politics" out of the equation, what reason do we have to think that an appointed committee is more insulated from political influences than the people are?
In the two decades prior to statehood, the Founders of Idaho had seen the appointment system at the federal level used to pack the U.S. Supreme Court for political purposes (one new justice had never even been a lawyer), and rejected appointment in favor of direct election by a 40-3 vote.
The federal appointment model has produced a disastrously activist judiciary, which has been systematically dismantling First Amendment religious liberties for over 40 years now. Unaccountable and unelected judges began to identify constitutional violations that had mysteriously escaped detection by the finest legal minds in America for more than 150 years.
A judiciary that is too "independent" soon floats off into the trackless ether of judicial unpredictability, untethered either to the Constitution or common sense, discovering "emanations" and "penumbras" that magically appear just when needed.
Because human beings are imperfect, there is no perfect way to select judges. To paraphrase, the direct election of Supreme Court justices is the worst method of judicial selection, except for all the others that have been tried. But the Idaho model at least reserves to the people the power to remove irresponsible judges.
If the legal establishment is unhappy with the direct election of judges, they should work to amend the constitution instead of ignoring it.
How will we know if our next two justices will honor the constitution? We ask them one question: Will you keep your solemn oath to uphold the constitution by serving out your final term so that the people of Idaho can choose your replacement?
For, if Idahoans aren't competent to elect their own judges, why should we consider them competent to elect anyone else?
© Bryan Fischer
The views expressed by RenewAmerica columnists are their own and do not necessarily reflect the position of RenewAmerica or its affiliates.
(See RenewAmerica's publishing standards.)
