Writings and observations

Stupid, no; poorly informed, yes

If Idaho Supreme Court Justice Linda Copple Trout was looking for confirmation that she would have been targeted with another attack campaign, she need wait no longer: It showed up clearly on the Idaho Values Alliance blog in a post by its executive director, Bryan Fischer.

Trout, who has served 15 years on the bench, is opting out this summer in part because, she said, she doesn’t want to go through another ugly campaign for re-election; her court seat is up for election next year. In discussing that, she said that elections probably are not the best way to choose judges. She reasoned: “I think the public feels frustrated because they don’t know how to judge a judge. All of the standard things that people usually use as a measure when they go to the ballot box are not there for judges, because judges don’t take stands and aren’t for something unless it’s something like justice, or timely justice, or something like that. That’s really hard for the public, to judge whether or not somebody really would do a good job.”

Our view is (and has been) that judges should be elected, at least on a retention basis, because they are officials whose job centers around making independent judgments, and that’s the criterion we ordinarily use in considering whether a job ought to be elective or appointive. That said, we agree with Trout’s point: Few voters have a good, clear basis for deciding whether a judge is doing their job well, or whether a non-incumbent would do it well. The major actions of a governor or of a major, or even of many legislators, county commissioners, members of Congress or city council members tend to be more visible and easily grasped than are the actions – collectively – of judges. Too often, one or two actions or decisions becomes the basis for assessing a whole career. A good many thoughtful voters we’ve talked with over the years (and by no means just in Idaho) see the problem. What’s needed, we would argue, is an improved system for tracking the work and decisions judges produce: Better oversight. Idahoans should be encouraged, too, to read Supreme Court decisions for themselves – they’re not written in Latin, and most are actually quite easily understood. With that can come the education voters need to make informed choices.

Probably we shouldn’t be surprised at the headline on Fischer’s commentary today: “Justice Trout: Idahoans are too stupid to pick their own judges.”

She said, of course, nothing of the kind.

But how much does Fischer think Idaho voters actually know about the work of their judges and justices – beyond the smattering of bumper-sticker slogans and two or three high-profile issues? How well-informed does he think the electorate really is?

Part of Fischer’s complaint here apparently has to do with the shutout among the 19 applicants for an opening on the Supreme Court (not Trout’s, but also-retiring Justice Gerald Schroeder) in responding to a Values Alliance questionnaire. Fischer writes, “we want candidates who will let the public know whether or not they agree with Idaho’s state constitution.” Does he realize the eventual successful applicant will be required, before taking office, to swear to uphold that document?

Another part evidently has to do with Trout’s reluctance to serve as a punching bag for the right next year. He quotes David Ripley as saying, “Now Justice Trout confirms that there is, in fact, a conspiracy within the state’s judiciary to effectively ignore the Constitution. These elites have decided to simply amend the Constitution without so much as a public court opinion or legislative act.”

Hardly: The appointive process goes way back (the first two Idaho Supreme Court justices to be appointed were chosen in 1914), and if a conspiracy it’s a big one. Of the current five justices, three originally were appointees. Of the 25 justices who hav served since 1950, eight reached the court by election, 17 by appointment. The appointments go through an extensive and fairly public process. People close to the courts we’ve spoken with over the years say they see little difference in quality between elected and appointed judges and justices. And the low voter rejection at the end of terms – Trout’s replacement will, after all, be up for election next year – suggests that the public tends not to be dissatisfied with most of the judges they get.

There was more; see also Kevin Richert’s blog for a useful take on the questionnaire.

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