Voting for Justice

How accountable is the third branch of state government?

Something happened in 2000 that had not occurred for a generation: a sitting Idaho Supreme Court justice was voted out of office. Incumbent Cathy Silak had drawn criticism for writing the majority opinion in Potlatch Corp. v. United States, which held that water rights in certain designated wilderness areas were reserved to the federal government. Daniel Eismann, a judge in Idaho’s 4th District Court, challenged Silak, drawing support from notable Republicans, including Congresswoman Helen Chenoweth.

The race became heated. Democrats claimed that Eismann was improperly courting partisan support by speaking to Republican committees and responding to a survey from the Idaho Christian Coalition. Nevertheless, Eismann won 58.6% of the vote in the May primary. He would later serve a term as Chief Justice and retired in 2017.

That remains the only time since 1946 that a sitting Supreme Court justice was defeated in an election. In fact, the last time anyone even challenged an incumbent justice was in 2010, when John Bradbury ran unsuccessfully against Justice Roger Burdick.

Technically, judges in Idaho are accountable to voters, but in reality, they owe their positions to an entrenched system overseen by the Idaho Judicial Council. Four of the five current Supreme Court justices were appointed to their positions by the governor, who receives a list of qualified candidates from the Council.

I don’t think it’s far-fetched to compare this system to a cartel, as its purpose appears to be ensuring that only insiders are ever considered. Both the Idaho State Bar— a self-governing agency operating under the Supreme Court— and the Judicial Council consist of figures whose priority is to protect the existing system.

According to its website, the Judicial Council is:

…comprised of nine members. The Chief Justice of the Supreme Court is the chair. A district court judge, a magistrate judge, two lawyers and four non-attorney members are appointed by the Governor and are subject to the approval of the Senate.

Sen. Brian Lenney recently had harsh words for the way in which judges are appointed here in Idaho:

Then, after they pick the candidates, the council hands Governor Little three (ish) judge candidates, and he must pick one.

He has no veto, and no real choice.

And if all three are the council’s cronies, Idaho gets another insider judge.

Worse though, judges often retire early (way before their terms end) to create vacancies so the council can slide in their handpicked replacements and dodge public elections.

No voters, no accountability.

Just a rigged game where the “good old boys” club calls the shots.

The conflicts are blatant. With lobbyists and congressional spouses picking judges, how can Idahoans trust the courts to be fair? The Judicial Council is the gatekeeper, not the Governor.

Once justices are appointed, they are able to run for reelection as incumbents, and few are willing to challenge them. Of the four current justices who were initially appointed, none have faced a contested election. Idaho Code requires that anyone seeking election as a Supreme Court justice must be:

• 30 years old

• A U.S. citizen

• 10 years experience practicing law

• Admitted to practice law in Idaho

• Resided in Idaho for at least 2 years

In short, the pool of qualified candidates generally consists of lawyers who frequently appear before the Supreme Court or who are already judges in lower courts. Could there be an element of intimidation, a fear that challenging an incumbent justice could harm one’s professional relationships in the future?

Campaigning for a judicial seat is also far more difficult than running for legislative office. A candidate for the Legislature can point to an opponent’s votes and statements to offer voters an alternative. A candidate for the Supreme Court faces a much steeper climb, as most voters have little understanding of how the judicial branch operates. This is why “what should I do with the judges on my ballot?” is one of the most common questions I hear from readers.

Judges and lawyers operate in a world that is far removed from outsiders like you and me. They go to school for many years in order to learn the ins and outs of the law, spend years paying their dues as associates in law firms, and live and breathe ideas that most people find abstract or just plain boring.

The offices of judge and justice are technically nonpartisan, and in a perfect world, interpreting the law would be impartial. In reality, however, ideological, philosophical, and religious worldviews inevitably shape how judges interpret legal questions, especially in cases that involve political questions.

Is it any wonder that our federal Supreme Court often splits neatly 6-3 on the most controversial questions? The three justices appointed by Democratic presidents often dissent from the majority appointed by Republican presidents in fairly predictable patterns. There is clearly an ideological lens through which even the most well-intentioned judges view the words of the law.

Even if Idaho voters were motivated to examine judicial candidates, opportunities to do so are rare. Only one current Supreme Court justice faced voters to reach the our highest bench. Robyn Brody, then an attorney in Twin Falls, defeated Curt McKenzie, a Republican state senator, in 2016. Rather than stepping down partway through his term, as seems to be the custom, then-Chief Justice Jim Jones retired at the end, creating an open seat. Brody led the May primary with 30.3% of the vote, followed by McKenzie at 27.7%, setting up a runoff in November, which Brody won with 53.8%.

Candidates and PACs raised nearly half a million dollars in aggregate for this race, with law enforcement and lawyer organizations backing Brody, while Republican lawmakers and organizations supported McKenzie. It was the most competitive statewide race that year, as incumbent Congressmen Raúl Labrador, Mike Simpson, and Senator Mike Crapo faced little serious opposition.

So what does this mean today? Our Supreme Court sits at the head of the Judicial Branch, and justices are technically accountable to voters, serving six-year terms and appearing on statewide ballots. In practice, however, most justices retire before their term ends, allowing the governor to appoint replacements. Even then, the governor is constrained by the Judicial Council’s screening process. Once appointed, justices are rarely challenged, and elections often become a rubber stamp.

Educating voters about this system is the first step. Sen. Tammy Nichols is continuing to work on creating a 501(c)(3) nonprofit to help citizens navigate this complex arena. I’ve begun developing the Judicial Branch section at Idaho Insider—feel free to check it out, but keep in mind it is still a work in progress.

The second step is considering potential reforms. Lawmakers and activists have suggested ideas such as allowing the governor to select any qualified candidate to fill vacancies (rather than the Council narrowing the field), requiring State Senate confirmation, or holding special elections to fill vacancies.

The offices of judge and justice should be nonpartisan and impartial, but that might be impossible in a polarized society. The next best thing is to empower the people rather than leave the system as a kabuki play in which voters have little to no real power.