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Posts published in “Day: February 15, 2017”

The harm in judge bashing

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Please welcome our new columnist - Jim Jones, former Idaho Supreme Court chief justice and a former Idaho attorney general.

Supreme Court nominee Neil Gorsuch expressed what many judges around the country were likely thinking when he commented that the President’s criticism of judges and courts was “demoralizing” and “disheartening” to the judiciary.

Whether such comments were rehearsed or spontaneous, they were on the mark. Not that judges have tender feelings - they often are criticized by unsophisticated litigants who lose in court. The disparaging criticism here came from the chief executive of our country, a person who has personally resorted to the courts of this country thousands of times to seek redress for perceived grievances.

Our system of justice is unrivaled in the world. One reason the United States became such an economic powerhouse is that we have a court system that is honest and even-handed. Litigants know that they will be listened to and treated fairly. Not every judge is perfect but the overwhelming majority are dedicated to the rule of law, both in state and federal courts.

The U.S. District Judge in Seattle who ruled first on the travel ban case was not a “so-called” judge. He was appointed by former President George Bush and confirmed by the U.S. Senate. The Ninth Circuit Court panel that heard the case on appeal acted as an appellate court should - it reviewed the record carefully and asked searching questions of both sides. The hearing was not “disgraceful” but conducted with fairness and dignity. The problem for the Government was that it provided no factual basis to support the ban, relying instead on the mantra that its decision could not be reviewed.

That argument might well prevail in Russia, where Putin gets everything he wants from his courts. It does not work so well in a country where wise founding fathers set up a system of checks and balances to keep government from overreaching. As part of that system, three co-equal branches of government were established - the executive, the legislative, and the judiciary. It is the responsibility of the judicial branch to call the balls and strikes when executive action is challenged as being in violation of statutes or the Constitution. This has occurred many times over the years in previous administrations.

It is fair game for a president or governor to criticize a court decision. But lambasting judges or courts for the decision is hurtful to the integrity of the judicial branch. Judges are ethically limited from speaking out to explain or justify a decision or to defend themselves against accusations made by disgruntled litigants. Unfair attacks on judges or the court system as a whole undermine public confidence in the courts.

I served 12 years on the Idaho Supreme Court and was impressed with the work of judges throughout the State--magistrate judges, district judges and appellate judges. I can’t recall any instance where a colleague made a decision based on ideology or personal beliefs. I can recall numbers of times when each of us decided a case contrary to our personal beliefs in order to be true to the law. That happens every day throughout the country. Our legal system is not “broken,’ or “disgraceful,”or “politically motivated.” Our court system is dedicated to the rule of law and will remain so unless it is eroded away by uninformed and unfair charges.

Three of the members of Idaho’s Congressional Delegation are lawyers and members of the Idaho State Bar. They should step forward to defend the integrity of the courts and judges.

Jim Jones served as a Justice of the Idaho Supreme Court from 2005 through 2016.

Where the statesmen?

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At the risk of dating myself some readers may recall an old folk song by Pete Seeger made more famous by the Peter, Paul and Mary trio whose first line is “Where have all the flowers gone/Long-time passing?/Where have all the flowers gone, long time ago?” It is a poignant plea for something lost which never will be recovered.

Sometimes on weekends, my wife and I prowl through thrift stores and old bookstores. Recently, while cruising through a thrift place in Kellogg, I came across a tear sheet of a page from the Idaho Statesman of September 1, 1912. The tear sheet was full page write up by the Statesman’s Washington, D.C. News bureau on the considerable legislative accomplishments of “the Lion of Idaho,” Senator William E. Borah, during the five plus years he had served in the Senate.

The old Pete Seeger song ran through my mind with a slight variation in the words: “Where have Idaho’s senators gone/Long time passing?/Where have the statesman gone/Long time ago?”

Admittedly, the full page article was a “puff piece” so glowing was the praise. It was clearly slanted with quotes from other senators on what an energetic dynamo the Idaho senator was.

Borah had been chosen by the Idaho Legislature to take a vacant senate seat in March of 1907. The 17th amendment to the Constitution changing senators’ elections to a popular vote had yet to be enacted. The Statesman article was also clearly signaling that the paper would be supporting Borah’s bid for a second term, which Borah received from the Idaho Legislature in early January of 1913.

Here are two quotes from the article. As you read ask yourself if you have ever heard anything similar said about Idaho’s two current senators, Mike Crapo and Jim Risch.

From the Statesman of September 1, 1912:

“A review of the Congressional Record for the past few years shows that no member of either branch of congress has been more successful than Senator Borah of Idaho in securing the enactment of legislation, and important legislation at that.”

Another quote:

“So successful has Senator Borah been with his bills of late that it is a matter of comment among senators. Not long before adjournment, one of the senate leaders, who has been in public life for nearly thirty years, remarked to some of his colleagues that “Senator Borah is the most successful man in charge of a bill that has been in the senate since I have been a member of that body.”

Few of the issues were simple or easy. Borah’s list of legislation passed included the three-year homestead law, the children’s bureau law, the eight-hour workday law, and the law giving early patent for homesteaders on government reclamation projects.

Borah also took pride in defeating an Alaskan government bill which would have denied Alaskans any voice in their government. He led the charge for an alternative bill which provided a great degree of self-government. He also strongly supported passage of the 17th and 19th amendments which provided for the direct election of senators and the vote for women.

Though a staunch Republican, Borah was a true progressive. History notes his opposition to the League of Nations and his isolationist views, which, coupled with his reputation for great oratory, would have one think he was more of a show horse.

Aside from the fact that his favorite form of exercise was horse-back riding early each morning through Rock Creek Park, Borah was clearly a work horse.

By all accounts a decent, honest, hard-working senator and loyal to his friends the only blemish on his distinguished record was a rumored affair with Alice Roosevelt Longworth, who was married to the then House Speaker Nicholas Longworth (a notorious rake himself). The affair produced a daughter and the story is the Speaker vetoed naming the daughter Deborah (as in de-borah). Instead she was named Paulina (and nicknamed Aurora Borah Alice) and sadly took her life at age 30.

Borah collapsed and died in 1940 at age 74. His widow, Mary McConnell (herself the daughter of a former Idaho governor and senator), survived him by 36 years, passing away in 1976 at the age of 106.

Some 77 years later Borah is still remembered in Idaho along with his progressive record of accomplishments.

I have a challenge for readers: Name one piece of legislation today you can attribute to Senators Crapo or Risch. They hold the two safest seats in the United States Senate. Senator Crapo has just been re-elected to his fourth term, which when completed will tie him with Frank Church for the second longest tenure. He could go on and perhaps break Borah’s record of 33 years. Thus, he still has time to make a mark.

Right now, though, neither he nor Risch are going to be remembered by history for anything other than warming the seats. I wish it were otherwise.

“Where have the Statesmen gone/Long time passing?”