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Guest Post: Judicial Council Screens Out Conservative Jurist?

June 25th, 2007 by Halli

From Bryan Fischer of Idaho Values Alliance

I wrote you last Friday about a lengthy conversation I had with one of the 19 candidates for the soon-to-be-vacant position on the Idaho Supreme Court. Some further thoughts on my conversation.

If Chief Justice Schroeder would have served out his final term, he would have left the choice of his replacement to the voters, as the constitution specifies, rather than to a screening process conducted by an appointed commission with no accountability to voters.

The individual with whom I spoke would likely have run for that open seat, and in my judgment would probably have been the favorite in that race. Due to his experience, he would perhaps have been in the best position to gain the electoral confidence of the public.

It is also likely that his judicial philosophy is more conservative than any of the four candidates who survived the Idaho Judicial Council’s (IJC) interview process.

What this means in practice is that there is a better-than-even chance that Justice Schroeder’s bypass of the constitution has deprived us of the most conservative jurist in the field, the jurist the people of Idaho may well have preferred had the choice been reserved to them as it should have been.

Further complicating this matter, state law requires that there cannot be a majority on the Idaho Judicial Council from any one political party. This means that the makeup of the IJC leans decidedly more to the left than the public, which clearly leans conservative in Idaho. Additionally, the one member of the seven-member IJC who was not able to participate in the interviews was a Republican.

This means that no more than two of the six members who voted on Schroeder’s replacement were from the Republican Party. And since “Republican” is no longer a synonym for “conservative,” it’s perfectly possible that one or both of the two Republicans on the Council were not genuine conservatives. The bottom line, then, is that the IJC simply does not reflect the views of the majority of the Idahoans who would have gone to the polls, putting conservative applicants for the post at a distinct disadvantage.

As a caveat, it’s difficult to get a good read on the judicial philosophy of the candidates, since none of them – including the candidate with whom I spoke – returned the IVA’s “Citizen Information” questionnaire, and the IJC asked no penetrating questions that would have required the candidates to divulge their governing judicial philosophy.

But in a campaign, aspirants for the high court would have been forced to deal with questions from the public and from the press that addressed issues such as judicial activism, whether the meaning of the constitution is fixed or something that changes with the culture, and so forth.

For instance, in the 2002 race between incumbent Linda Copple Trout and challenger Starr Kelso, each was asked to identify the U.S. Supreme Court Justice who most reflected their own judicial philosophy, and each answered that question. (If memory serves, Trout identified Sandra Day O’Connor, who frequently joined activist rulings, and Kelso identified Antonin Scalia, renowned for his adherence to an originalist approach to constitutional interpretation.)

Although the favorite-Supreme-Court-justice question was on the IVA questionnaire, since candidates feared the IJC too much to return it, and since the IJC didn’t ask any of the candidates that question, we simply have no idea how these candidates would have responded to this illuminating query.

Because of the secretive process conducted by the IJC and the virtual blackout on questions pertaining to judicial philosophy, we really have no way of knowing whether the next jurist will respect original intent or not until he issues his first ruling, and by then it will be too late.

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