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Oyez oyez!

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We get our supreme court all settled down from welcoming the improving health of the court’s practical realist, and just barely get the chairs rearranged from electing a new chief justice, when the table gets tipped over.

Chief Justice Jones’ decision to hang it up comes as a complete surprise to most of us. Although the Chief is just turning 74, judges tend not to slow down so early – especially if one has just been elected chief. Nevertheless, it’s done, and of course, we wish him well. Life will go on; the hat is already filled with new names.

The judicial election will be with the normal state primary for legislative and state offices in May. The overwhelming problem will be name identification, and determination of qualifications. The three candidates are reasonably well known around their own legal circles and communities, but their names are certainly not household words. I suspect that more than some people are going to say, “Clive who? Isn’t he that rancher from Nevada?”

This means within the next six to eight weeks, each of the three must vie with the local politicians everywhere and the drumbeat from the national presidential machinations, not only to get themselves introduced into the far crannies of the state but also to offer the voter some rational reason to select one of them over the others. A daunting task.

Whatever they can muster will be all that the people of Idaho will have to use in making up their minds on the individual who will hold an undivided one-fifth of the supreme judicial power of the state. Or perhaps to deselect one of them, and leave the other two to run it off in November; which will only compound and prolong the confusion.

Of all the methods of selecting judges, their popular election at periodic intervals seems the least satisfactory. The draftsmen of the U.S. Constitution believed that an independent judiciary was an essential ingredient of government, and they guaranteed this independence by making judicial office a lifetime position. This was a controversial step then, and remains such today. There are some – fortunately not many — who advocate taking away the independence of the judiciary, and trading it in for popularly elected judges.

Idaho follows most of the states in disregarding lifetime appointments. In two area of judicial selection, for justices of the supreme court and for judges of the district court, Idaho follows the popular election at regular intervals. I was appointed to the bench to fill out the term of my predecessor. I ran three times for reelection, each time with trepidation that someone would take me on – but I was unopposed each time. I am not sure how I would have fared in a contested election; I detest campaigning and have no stomach for the contest.

Idaho also uses an appointment system with retention elections for selection of magistrates and judges of the court of appeals. This is a system coming into use in a growing number of states. The judge is appointed from a select, vetted list for a specific term of years, and then stands for a retention election – yes or no. This method retains most of the characteristics of judicial independence, but injects an element of public interest and control in the ability to turn out the unsatisfactory jurist. It prevents the possibility of demagoguery in electing the most popular candidate, but does offer a trap door to dump the unwanted.

On balance, it seems that the magistrates’ courts and the court of appeals benefit from the lack of upheaval and consternation that the supreme court and district courts endure every time there is a contested election. The same system could be carried over to rest of the courts in Idaho, albeit with a constitutional amendment.

Perhaps, as the judicial campaigns for Justice Jones’ seat unwinds, and the difficulties and uncertainties of our current method of judicial selection begin to emerge, a closer examination of alternative methods of the selection of judicial officers might be in order.

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