Writings and observations

Kinds of qualifications

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In the May primary election, candidates for an open state Supreme Court seat included two of the most deeply qualified candidates for the high bench in the state’s history. The voters didn’t choose either of them.

But then, qualifications can come in many flavors. They differ considerably between the two remaining candidates, Robyn Brody and Curt McKenzie, competing for the seat now held by Chief Justice Jim Jones.

Jones had an extensive history in partisan politics, running unsuccessfully in a Republican primary for Congress (against an incumbent) in 1978 and 1980, then successfully as a Republican for attorney general in 1982 and 1986, finally losing a Republican primary for the U.S. Senate in 1990 to Larry Craig.

Quite a few Idaho justices have had background in the give and take of partisan politics, and that can be an asset on the bench. We tend to forget it now but many federal Supreme Court justices through our history had extensive political histories too, and we probably are not well served by limiting the roster of justices to veteran judges and law professors. People who come from other perspectives and especially from politics, where they typically have to work with a variety of real-world situations and viewpoints, could contribute a great deal.

So the idea, which seems to have spread widely, that McKenzie’s legislative background ought to be a black mark against him, doesn’t really work. As a resume point, it seems more a plus than a minus.

There are other kinds of background that would be useful on the court.

Most recent Idaho Supreme Court justices have come from either lower benches or from the top law firms in the state, mainly in Boise. Jones is the near-exception in the current group (the attorney general’s office can be considered the state’s biggest law firm); Daniel Eismann, Roger Burdick and Joel Horton all were district judges, and Warren Jones was a top litigator with one of the leading private firms in Boise, Eberle Berlin.

Compare that with this from a description (in the Spokane Spokesman-Review) of attorney Brody: “Robyn Brody’s law office in downtown Rupert is right next door to the police station and not far from the courthouse and City Hall. ‘I get a lot of walk-in traffic,’ she said. It could be someone needing help appealing their unemployment decision, or seeking information on how to get a marriage license. Her law practice includes that work, plus water law, an array of business clients, major real estate transactions, and representing a local hospital, several community health centers and two school districts.”

An attorney doesn’t get much more grounded than that. A small-town attorney taking in such a wide range of law work may not develop super-deep specialized expertise, but probably will have a strong sense of how those decisions emanating from Boise hit home in the far reaches of the state. It’s not glamorous or especially prestigious, but it sure is real. And, while several of the current justices (Eismann, Burdick, Jones) do have some small-town law practice experience, that’s awhile back in their pasts, mediated through years on the bench. (Candidate McKenzie practices in the Boise, and his experience would be mediated through statehouse legislative experience.) Brody’s background would bring something to the court that isn’t there now.

Brody also brings more to the table. She has worked for a larger firm (Hepworth Lezamiz & Hohnhorst in Twin Falls), and has background in Idaho (and as far away as Russia) to broaden her horizons. She evidently has a good reputation with her peers, serving in leadership in the regional bar association, usually a positive indicator for a prospective judge.

Without party labels (either explicit or implicit) as guidance, Idaho voters will need to look deeper to make their choices for the Supreme Court.

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