Lessons from Red States: End Idaho Bar Association’s Role in Selecting Judges

Idaho’s Constitution hangs in the balance because Idaho disarms the political branches in judicial nomination process.

From Octavio Jones,Tampa Bay times, 2020

Idaho’s pro-life legislation barely survived judicial scrutiny in 2022-2023. Two of Idaho’s five Supreme Court justices argued that Idaho’s pro-life laws violated Idaho’s Constitution. The opinions of Justices John Stegner and Colleen Zahn read like rhetoric from a typical progressive Supreme Court justice. Zahn: “The Framers didn’t intend to literally freeze the law precisely as it existed in 1890” (p.108). Stegner: “The Idaho Constitution was adopted to govern Idaho for years to come, not to stop the clock in 1889” (p. 139).

Both of these dissenting justices were appointed under Republican governors. How could they turn out to be leftist clichés?

Idaho’s Judicial Council is one reason why State Supreme Court justices lean to the left. Idaho should consider significant reforms to its Judicial Council that take power away from the Idaho Bar Association and puts power more directly in the hands of the Governor and, perhaps, the Senate.

Many states use nominating commissions combined with governor appointment. They can help ensure quality (as the Council vets candidates) while also some political accountability (the governor has the final say). Idaho and Florida have governors nominate judges from a list accumulated by the nominating commission, for instance, as do more than thirty states. Many of those states are solidly Republican states, especially at the state level.

Not all nominating commissions are the same. Differences arise in 1) how the judicial nominating commission is selected and 2) how much leeway the governor has when selecting from the list. Oher states are much more alive to the problems that can arise from nominating commissions than Idaho.

Idaho’s Judicial Council is mostly a product of our Idaho’s lawyers. By statute, Idaho’s Bar Association has a formal role in staffing the judicial council. Idaho statute provides for who shall sit on the seven-member Judicial Council. The Chief Justice of the Supreme Court chairs it. Three members, including a district court judge, are appointed “by the board of commissioners of the Idaho state bar.” The other three members are non-attorneys, appointed by the governor. The Judicial Council aims to be non-partisan. Not more than “three of the permanent appointed members shall be from one political party.” The governor cannot turn down the members sent by the Idaho bar.

In Florida, things are different. Gov. Ron DeSantis recognized that the Florida Bar Association is not a friend of conservative governance, and Florida came to adopt a subtle but important change to increase the likelihood that conservatives would sit on the nominating commission. The Governor has the final say on all the members of Florida’s Judicial Nominating Commissions (JNCs), though others can weigh in on them.

Again, in Florida, the JNCs prepare lists to fill vacancies for The Supreme Court, appellate districts, and circuits. Each JNC has nine members. The governor selects five members directly. The Florida Bar sends lists of candidates to fill the other four seats. But here is the difference. The Governor can, for whatever reason, “reject a list of nominees and request” that the Bar send new lists.

It has worked. Conservatives rule in Florida's judicial system.

Florida checks the Bar’s power to select members to the nominating commission, unlike Idaho where the Bar selects 3 out of seven members without political oversight. The leftist bent is a product of Idaho’s process.

There is a lesson here. Idaho can keep the general nomination process for judges, but it should end the formal and unchecked participation of the Idaho Bar in our nomination process. Everything in Idaho’s Judicial Council should come to resemble what Florida is doing.

Do what Florida is doing—that is a pretty good rule of thumb!