Bryan Fischer
September 19, 2007
Governor to be commended for making choice based on merit
By Bryan Fischer

Gov. Otter resisted pressure to make gender the primary qualification for selecting the next Idaho Supreme Court justice, picking the candidate who was most qualified in his judgment to take a seat on the bench. He chose 4th District Court judge Joel Horton to replace retiring Justice Linda Copple Trout.

Of the four finalists sent to the governor by the Idaho Judicial Council, two were women, and the Idaho Women Lawyers association put considerable public pressure on the governor to choose a woman because, well, just because she was a woman.

In other words, they wanted the governor to use gender bias in making his choice, an odd thing coming from professionals who ought to be dedicated to eliminating sexual bias in the court system. If justice is going to be fair and evenhanded, it must be blind to matters of race, color and sex, and it's hard to see how using sexual discrimination to put a judge on the bench in the first place helps rather than hurts the cause of impartiality.

To his great credit, the governor said, "I didn't see this as a gender seat. What I looked for was the best candidate."

It's frankly difficult for the public to make an informed judgment about Judge Horton's qualifications for the bench, since we know almost nothing about his judicial philosophy and he refused to fill out questionnaires that would have given the public a peek into his views.

Fortunately, those I have talked with in the legal community believe that Judge Horton will make a fine jurist, and will see his role as one of upholding the law rather than creating the law.

Trout's early retirement was done expressly to avoid the plain requirement of the Idaho State Constitution that citizens are to choose their own Supreme Court justices.

She famously said she was stepping down early because ordinary Idahoans just aren't smart enough to pick their own judges, and consequently gave herself the liberty to deliberately circumvent the very Constitution she took an oath to uphold and place the process of choosing her successor in the hands of an unelected committee.

Missouri is the current poster child for the damage that can be done when the judicial selection process is placed in the hands of an appointed commission, as the story below from Human Events points out. The Idaho Values Alliance joined a number of national organizations in signing a strongly worded memo to the governor of Missouri complaining about the state's selection process, which has created an alarmingly activist state supreme court in the Show Me State.

© Bryan Fischer

 

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