Idaho has a truly outstanding judiciary, thanks to procedures designed to ensure competent, non-partisan appointments. Magistrate judges are appointed to four-year terms by regional commissions and thereafter run in non-partisan retention elections within their judicial district. The Idaho Judicial Council was established in 1967 to ensure a non-partisan, competence-driven selection process for district and appellate judges. The Council screens candidates and recommends 3-4 of the best to the Governor, who makes the appointment. After that, they run for re-election on a non-partisan ballot. It has been remarkably successful in producing highly-qualified, impartial jurists.
During his 12 years as Idaho Governor, Butch Otter appointed over 55 judges for Idaho’s judicial system–5 Justices of the Supreme Court, 5 judges for the Court of Appeals and over 45 district court judges. He regularly received praise from governors of other states for the high quality of Idaho’s judiciary, which Otter attributed to the Judicial Council selection process. Otter regards our excellent judiciary as an important part of his legacy and he has good grounds for doing so.
Unfortunately, in this era of strife in Idaho politics, even the court system finds itself in the crosshairs of extremists in the Legislature who get their instructions from Dorothy Moon and the Idaho Freedom Foundation (IFF). The GOP platform calls for judges to be elected in a “partisan election process.” That would discourage many of the best lawyers from seeking judicial office and result in politicization of the court system.
Our judges rarely deal with hot-button issues. Those generally go to the federal court in Idaho. It is essential to have experienced, competent judges on the state courts to handle everyday legal disputes–criminal cases, business disputes, family matters, personal injury, worker compensation and a wide range of other issues that need to be decided by impartial, well-qualified judges, not politicians in black robes.
Legislators in the GOP’s extremist branch have begun targeting the courts for failing to rubber stamp their pet legislative projects. They were particularly enraged by the Supreme Court’s 2021 decision striking down their statute that made it practically impossible for the people to pursue an initiative or referendum. The Court issued a well-reasoned opinion affirming the constitutional right of Idahoans to make laws they want when the Legislature refuses to act. Legislators retaliated in 2022 by denying pay raises for our judges. While they voted 7% cost-of-living pay increases for other state employees, they provided no increase for Idaho judges. The initiative decision was frequently mentioned by legislators during their proceedings.
In the last two years those same extremist legislators have tried to infuse partisanship into the selection process for judges. They approved legislation giving a partisan tilt to Judicial Council membership. A bill made it out of committee this year in the Senate that would have gone a long way toward making most district and appellate judges seek election in our low-turnout May primaries. That would have largely disabled the Judicial Council appointment process which has been so successful in developing Idaho’s outstanding judiciary.
There are ominous signs of what lies ahead. The IFF has recently taken potshots at the Judicial Council process, claiming it is controlled by lobbyists acting for their clients. As Chief Justice of the Idaho Supreme Court, I served on the Council and was impressed with its emphasis on competence and lack of partisanship. The IFF clearly does not understand how the Council operates.
On the other hand, the extremists who now control the GOP are calling out elected officials at all levels of government, including the Governor, for failing to strictly abide by the party platform. Legislators who dare to use their brains and depart from strict compliance with the platform are being called into loyalty sessions by party functionaries, much like the old Soviet Politburo. Their demand for legislation requiring partisan election of judges will undoubtedly become part of the Politburo loyalty tests.
If Idahoans want to keep a remarkably competent judiciary that will impartially decide disputes between businesses, family members and other private litigants, they must let their legislators know they won’t stand for politics in selecting judges. We certainly don’t want to entrust politicians with handling cases like the Daybell and Kohberger murder trials. It’s time for Gem State voters to stand up and speak out for our court system.