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Guest Post: Bryan Fischer Fires Back in the Lewiston Tribune, Defends Judicial Responsibility

May 29th, 2007 by Halli

From Bryan Fischer of the Idaho Values Alliance

The Lewiston Morning Tribune published two editorials this month devoted exclusively to attacking the IVA’s questionnaire for candidates to the Idaho Supreme Court. The Tribune’s policy, for which it is to be commended, is to make space available to any individual or organization which is criticized in an editorial. Yesterday, the Tribune published the IVA’s “Turnabout” response.

Turnabout: Cone of silence covers court candidates

Bryan Fischer
May 27, 2007

As many readers of the Tribune know, the Idaho Values Alliance sent a judicial questionnaire to all 19 candidates for the upcoming vacant seat on the Idaho Supreme Court. Since both Jim Fisher (on May 20) and Tom Henderson (on May 9) have attacked the IVA for the questionnaire, it appears the prosecution has now rested, and it may be time to hear from the defense.

Of the 23 items on our questionnaire, 20 were “agree/disagree” statements that were drawn virtually verbatim from the Idaho Constitution itself. Thus we simply asked these candidates whether or not they agreed with the very document they are prepared to take a solemn and sacred oath to uphold.

In other words, much to Mr. Henderson’s embarrassment, we weren’t looking for “holy warriors” as he charges, but for a justice who understands something about the constitution.

Bizarrely, not one of the 19 candidates returned the IVA’s questionnaire. They either did not recognize the constitution, which is alarming all by itself, or they did recognize it, but were unwilling to let the public know if they agree with it. That’s even worse.

For instance, we asked these candidates whether or not they agree with the proposition that all citizens have “an inalienable right to enjoy and defend both life and liberty.” No answer. Do you agree that all citizens “have an inalienable right to acquire, possess, and protect property?” No answer. Do you agree that “all political power is inherent in the people?” No answer.

Do you agree that “the exercise and enjoyment of religious faith and worship should be forever guaranteed?” No answer. And so forth and so on. Contrary to Mr. Fisher’s contention that these candidates would flunk this “test just by taking it,” the reality is the reverse – they flunked this simple constitutional exam by refusing to answer any of its questions.

This naturally makes an observer wonder whether any of them is in fact qualified to sit on the bench. How could we possibly know? One candidate replied to the IVA by indicating that he could not fill out the questionnaire since judicial custom “precludes me from commenting on matters likely to come before the Court,” a standard dodge that keeps the public in complete ignorance about his judicial philosophy.

Contrast this attitude with the six Pennsylvania judges who were so eager to give the public information about their judicial outlook that they recently sued for – and won – the right to fill out a questionnaire similar to ours.

Imagine you were a league official interviewing prospective umpires.

“Will you faithfully apply the rules of baseball?”

“Of course.”

“Well, what about the ‘three strikes and you’re out’ rule?”

“Well, I really can’t comment on that because I might actually have to call a game behind the plate someday.”

It’s no less ridiculous when a prospective judge says he will uphold the whole constitution, but refuses to commit to upholding its parts. But in his case, the stakes are far higher.

When Dan Eismann ran for a seat on the Idaho Supreme Court in 2000 against an incumbent, he readily filled out a much more extensive questionnaire than the IVA’s. Judge Eismann let the public know something about his judicial philosophy, while his opponent did not. (In fact, her questionnaire came back with a profanity scribbled across the first page.)

The public so appreciated his candor and convictions that they elected him 59 percent to 41 percent.

Eismann’s example shows how absurd it is for candidates to hide behind the conceit that somehow it is beneath potential judges to give the public a window into their judicial philosophy.

As things stand, the Idaho Judicial Council, an appointed committee with no accountability to voters, will pare the list of 19 down to two to four names, which they will submit to the governor. Meanwhile, no one – not the public, probably not even the IJC – will know anything substantive about the judicial philosophy of the individual who will one day be issuing rulings that affect the life of every Idahoan.

Perhaps the day will come when the information blackout that shrouds this process is lifted, but apparently – with Mr. Henderson and Mr. Fisher reinforcing the cone of silence – that day is not today.

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